(Per : HONOURABLE MS. JUSTICE R.M.DOSHIT)

With the consent of the learned advocates, the Appeal is heard and finally decided today.

Feeling aggrieved by the judgment and order dated 16th March, 2009 passed by the learned Single Judge, the appellant writ petitioner has preferred the present Appeal under clause 15 of the Letters Patent.

The appellant joined the service of the Government of Gujarat in Class-III service as Laboratory Technician under the respondent no.3 Commissioner of Health, Medical Services and Medical Education. After serving for more than 30 years; while he was posted as Senior Scientific Assistant (Class-II) at Dahod, on 6th September, 2005, he submitted application for voluntary retirement effective from 31st December, 2005. It appears that after 31st December, 2005, at the request of the superior officer, the appellant continued to serve as Biologist till 30th November, 2006. The absence of the appellant since 1st December, 2006 was treated as absence from duty without pay. In view of rule 16 of the Gujarat Civil Services (Leave) Rules, 2002 (hereinafter referred to as the Leave Rules ), after a period of lapse of one year the appellant was deemed to have resigned from service. On 1st August, 2008 he was informed that his application for voluntary retirement was not accepted. By Resolution dated 18th October, 2008, weeks before the appellant reached the age of superannuation, the appellant was deemed to have resigned from service from 1st December, 2006, the date since when the appellant did not report for duty. Feeling aggrieved, the appellant preferred the above Special Civil Application No.13587/2008 before this Court.

The petition was contested by the State Government. In the counter-affidavit, the State Government referred to the appellant's continuous absence from service since 1st December, 2006 and above referred rule 16 of the Leave Rules.

The learned Single Judge was pleased to hold that as the appellant had continued to serve after the effective date of voluntary retirement till November, 2006, his application for voluntary retirement was of no consequence. The learned Single Judge was, therefore, pleased to dismiss the petition. Therefore, the present Appeal.

Learned advocate Mr.Upadhyay has appeared for the appellant. He has relied upon the Gujarat Civil Services (Pension) Rules, 2002 (hereinafter referred to as the Pension Rules). He has submitted that rule 47 of the Pension Rules, inter alia, empowers a Government servant to retire from service voluntarily after completion of 30 years' qualifying service. Proviso thereto enjoins such employee to give a notice of atleast three months in writing to the appointing authority. He has submitted that the application for voluntary retirement submitted by the appellant was in consonance with the above referred rule 47 of the Pension Rules. The appellant had completed 30 years' qualifying service and he had given notice of more than three months. On expiry of the notice period, the appellant would stand retired voluntarily. He has submitted that the right to voluntary retirement conferred upon a Government servant under rule 47 of the Pension Rules is absolute. In other words, the voluntary retirement under the said rule 47 is not dependent upon the wishes of the appointing authority. He has submitted that if the aforesaid rule 47 is read with rule 48, the contradistinction is apparent.

Rule 48 of the Pension Rules provides for retirement on completion of 20 years' qualifying service. The said rule expressly provides for acceptance by the appointing authority . Proviso to the said Rule 48 expressly provides that the retirement shall become effective from the date of the expiry of the notice period, where the appointing authority does not refuse to grant permission for retirement. In other words, the appointing authority is conferred power to refuse permission to retire. The aforesaid phrases are conspicuously absent in rule 47 of the Pension Rules.