Pushpendra Singh Bhati, J.

Petitioner was appointed as Plant Protection Mukkadam w.e.f. 12/11/1963 in the respondent-department. Thereafter, he was appointed as LDC on 01/06/1966 and was regularized on the post of LDC from 14/09/1972. He was promoted as UDC on 01/04/1986. The petitioner attained the age of superannuation on 30/09/2003. He was served a notice on 24/02/2004 seeking explanation for his long time wilful absence from and in reply to which he submitted that due to death of his wife and disappearance of his son, he was under severe mental agony and therefore, was suffering from depression and was not even able to attend the duties. The respondents issued charge-sheet to the petitioner under Rule 16 of the Rajasthan Civil Services (CCA) Rules, 1958 (hereinafter referred to as 'the Rules of 1958') and commenced with the enquiry. The disciplinary authority held that the charges were proved in totality and therefore, the proceedings under Rule 16 of the Rules of 1958 were decided by ordering that his absence shall be treated as extra ordinary leave (without salary) and the proceedings were thus closed. Once the disciplinary proceedings had culminated into a final order on 17/05/2006, then it was a legal obligation upon the respondents to give him retiral benefits. However, the petitioner was informed vide letter dated 17/04/2007 by the respondents that the retiral benefits cannot be paid to him as his past services were forfeited vide order dated 02/02/1999. The petitioner has preferred this writ petition seeking retiral benefits.

2. The respondents filed a detailed reply and stated that though the petitioner had discharged his services but his past services were forfeited by order dated 02/02/1999 under Rule 86(1) of Rajasthan Service Rules, 1951 (hereinafter referred to as the 'Rules of 1951'). Once the petitioner has been punished for habitual absence by forfeiture of past services by invoking Rule 86 of the Rules of 1951, then there was no question of retiral benefits as the petitioner then had a valid service only from 02/02/1999 to the date of superannuation i.e. on 30/09/2003 and the same was also subject to order Annexure-4 dated 17/05/2006 whereby the absence prior to the retirement was treated to be without salary. A copy of another decision is also placed on record by the respondents which is dated 18/01/2002 whereby due to the wilful absenteeism of the petitioner, he has been tried under Rule 16 of the Rules of 1958 and on account of the absenteeism, the period of absence has been treated as without salary and was not to be counted for the purpose of retiral benefits. The respondents have also taken a preliminary objection that these orders are not under challenge and therefore, the main prayer of the writ petition cannot be allowed without quashing these orders.

3. Counsel for the petitioner Shri Satyapal Poshwal has drawn attention of the Curt to the judgment passed by this Court in the case of Suresh Chand Choudhary v. State of Rajasthan & ors (SB Civil Writ Petition No.3365/1999), decided on 04/01/2017, the relevant portion of which is as follows:-

"Learned counsel for the respondents Shri Kushal Singh thus made out a case that the prayer sought by the petitioner cannot be granted in the light of the aforementioned judgment and thus the merit list had acquired finality and no relief could be granted. Learned counsel for the petitioner Shri Himanshu Jain made an excellent effort to fortify his argument that the prayer clause cannot be used as a limitation for grant of relief and, for the same, learned counsel relied upon the judgment of B.C. Chaturvedi v. Union of India & Ors. Cited in (1995) 6 SCC 749. The relevant para is as follows:-

"22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of long line of decision of this Court, to which refer