The decision to treat an application for voluntary retirement as resignation, leading to the denial of retirement benefits, is illegal and arbitrary.

ORDER :

Paresh Upadhyay, J.

1. By way of this petition, challenge is made to the order dated 10.4.1995, passed by the Commissioner of Health, Gujarat State, by which, the application of the petitioner for voluntary retirement is treated to be resignation and the same is accepted as resignation. The said order is subsequently corrected on 23.9.2003 whereby, the effective date of resignation is indicated to be 8.7.1991. The petitioner has also prayed that the respondent authorities be directed to give pension and other retirement benefits, considering the fact that the petitioner had put in more than 28 years of service, before submitting application for voluntary retirement.

2. Heard Mr. Paradeep Patel learned advocate for the petitioner and Mr. Rasesh Rindani learned A.G.P. for the respondent authorities.

3. Learned counsel for the petitioner stated that the petitioner had joined the services of the Government as Leprosy Supervisor on 28.5.1963. In the year 1991, the petitioner had completed more than 28 years of service and owing to his personal difficulties, he was not in a position to continue in Government service, and therefore, on dated 30.11.1991, he gave an application to the authorities for voluntary retirement. In the said application, the petitioner explained in detail, that on completion of 28 years of service, he is entitled to pension and even additional five years service and increments for the purpose of calculation of pension. It was requested that the same be accepted. Along with the said application, he had also forwarded pension papers duly filled in. In subsequent follow-up letter dated 2.12.1991, the petitioner inadvertently used the word "voluntary resignation" instead of "voluntary retirement". The authorities passed an order on 10.4.1995 declaring that the request of the petitioner for resignation is accepted. The effect of passing the said order, holding that the resignation is accepted, was that the petitioner would not be entitled to any retirement dues, neither pension, nor gratuity, nor leave encashment, nothing. It is pointed out that, the petitioner had, even prior to passing of this order, explained to the authorities that since he had completed 28 years services, he was entitled to pension and had also forwarded pension papers duly filled in, and therefore, in letter as well as in spirit, he had applied for voluntary retirement and not resignation. It is contended that usage of improper vocabulary in one of the subsequent letter, i.e. instead of "voluntary retirement" the word "voluntary resignation", should not wipe out his entire service, to disentitle him to receive retirement dues. Learned counsel for the petitioner Mr. Pradeep Patel has further submitted that the son of the petitioner was ill. He was to be treated and even medicines which were not available here, were to be brought and purchased from abroad. The petitioner also became mentally disturbed and ultimately, his son did not survive. It is indicated that the date of birth of the petitioner is 21.8.1938, and thus, he would have attained the age of superannuation in August, 1996, retiring with effect from 31.8.1996. Couple of years before superannuation, due to his personal difficulties, the petitioner tendered an application for voluntary retirement which would entitle him to receive pensionary benefits. The authorities, just with a view to disown liability of retirement dues, caught one word conveniently from one of the applications and treated that it is not voluntary retirement but it is resignation. Under these circumstances, by the order dated 10.4.1995, the authorities declared that resignation of the petitioner is accepted. It is indicated that in the said order it was not indicated as to which is the date from which the resignation was accepted. It is indicated that the petitioner continued exchanging correspondence with the authorities and ultimately, approached this Court by way of filing the present petition and thereafter