( 1 ) THE petitioner who was at the relevant time serving as Assistant Director of Industries Gujarat State and alleged to have voluntarily retired has by this petition challenged the action and orders of the respondent-State Government of not granting him benefits of Government Resolution No. 1070/5158/j dated 8-10-1970 on the ground that the petitioner has not voluntarily retired but was made to retire by the State Government. The important question therefore that arises for my consideration is whether the retirement of the petitioner is voluntary or he has been made to retire by the State Government after giving him three months notice as provided under rule 161 (1) (aa) (i) of the Bombay Civil Services Rules (B. C. S. R. ).

( 2 ) IT is not disputed that the petitioner was recruited as Inspector in the former State of Bombay on or about 3 1948 and in due course reached to the post of Assistant Director of Industries from 8 As disclosed from the correspondence as well as the affidavit of the Government the petitioner addressed a letter dated 2-1-1976 praying for retirement from service from 30-4-1976. The said letter was treated as notice of three months. There is also no dispute that in fact the petitioner ceased to be a Government servant from 1-5-1976 i. e. he has retired from 30-4-1976. The petitioner completed more than 26 years of service and when he retired his age was about 56 years. In the aforesaid circumstances it cannot be disputed that the provisions of rule 161 of the B. C. S. R. are applicable.

( 3 ) AGE of compulsory retirement in the case of the petitioner is 58 years i. e. when he attains the age of 58 years. However under the provisions of rule 161 of the B. C. S. R. the appointing authority on fulfilling the conditions mentioned therein has a right to retire a Government servant after giving him three months prior notice or salary thereof. Similar right has also been given to a Government servant who fulfils the conditions mentioned therein to give three months notice in writing to the Appointing Authority to retire him from service though in certain cases the appointing authority has a right not to allow the Government servant to retire e. g. if the departmental proceedings are pending against him etc. But in this petition we are not concerned with that provision because it is nobodys case that there were any departmental proceedings pending against the petitioner. Under the scheme of rule 161 of the B. C. S. R. it has been the settled legal position that while giving power to the Government to compulsorily retire a Government servants against his wish there is a corresponding right of the Government servant to voluntarily retire from service by giving the Government three months notice in writing. There is no question of acceptance of the request for voluntary retirement by the Government when the Government servant exercises his right under rule 161 (1) (aa) (ii) of the B. C. S. R.

( 4 ) FROM the facts of this case it appears that the petitioner has written a letter dated 2-1-1976 for voluntarily retirement and by an order dated 9-3-76 (Annexure A to the petition ). the Deputy Secretary has treated the said letter as three months notice as required under rule 161 (1) (aa) (ii) of the B. C. S. R. However having treated the said letter as a notice for voluntarily retirement the Government has further added the instructions laid down in para 2 (ii) of the Government Circular dated 15-5-70 which is the bone of contention before mo. The State Government has also accepted the application for voluntary retirement of the petitioner with effect from 30-4-76.

( 5 ) THEREAFTER by the second communication dated 9-3-1976 (Annexure A) (which according to Mr. Mehta should be dated 5-4-76) the Government has retired the petitioner with effect from 3-4-76 under the provisions of rule 161 (1) (aa) of the B. C. S. R. read with instructions laid down in paragraph 2 (11) of the Government Circular dated 15-5-