This application has been filed by a retired Superintending Engineer of the Public Health Department, Govt of Assam.

2. The prayer made in this writ application is to quash the letter dated 26.4.93 issued by the respondent No.2 holding that the voluntary retirement as referred to the petitioner cannot be accepted. That is Annexure VII to the writ application and that is quoted below:

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3. The petitioner wanted to go on voluntary retirement vide Annexure V to the writ application with effect from 2.2.86 after completion of service of 23 years 6 months. The rule of voluntary retirement is that any person can go on voluntary retirement after completion of service of 20 years or on attaining the age of 50 years which ever is earlier. The petitioner in this case fulfills both the conditions. On 27.3.86 the petitioner wrote to the Commissioner and Secretary to the Govt of Assam, Health and FW Department as follows:

“Under Rule FR 56 (c), I beg to apply for voluntary retirement with effect from 3.2.86 and the Govt may release me from that date.

Further to my letter dated 6.2.86 the Govt may provisionally release me by adjusting my outstanding house building advance of Rs.20,000/- (Rupees twenty thousand) only plus interest thereon against gratuity amounting to Rs.25,000/- (or so). The GPF A/C No. PH (A) 1437 standing in my name also may please be settled by Accountant General with an instruction to withdraw the amount finally.”

4. The authority wants to stop this offer of voluntary retirement on the ground that it is to be accepted by the competent authority. The law on this point has been settled by a decision of the Supreme Court reported in AER1978 SC17 (Dinesh Chandra Sangtna vs. State of Assam & others) where in paragraph 13 it has been stated as follows :

“FR 56 is one of the statutory rules which binds the Government as well as the Government servant. The condition of service which is envisaged in Rule 56 (c) giving an option in absolute terms to a Government servant to voluntarily retire with three months previous notice, after he reaches 50 years of age or has completed 25 years of service, cannot therefore be equated with a contract of employment as envisaged in Explanation 2 to Rule 119.”

5. So, once this option is exercised by the employee, the question of not I accepting it by the authority does not arise. In that view of the matter, the I petitioner's voluntary retirement shall be deemed to be effective from 3.5.86 and the petitioner shall be entitled to all the pensionary benefit as available to him from that date and Annexure VII, dated 26.4.93 shall not be a bar for giving pensionary benefit in accordance with the rules as the petitioner shall be deemed to go on voluntary retirement from that date.

6. This disposes of the writ application.

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