A government servant's qualifying service includes periods of unauthorized absence unless a disciplinary proceeding is initiated. The voluntary retirement request must be accepted if not explicitly rejected within the notice period.

JUDGMENT :

Sujit Narayan Prasad, J.

Prayer

1. The instant appeal preferred under Clause-10 of Letters Patent is directed against the order dated 30.06.2020 passed by the learned Single Judge of this Court in W.P.(S) No.516 of 2015, whereby and whereunder, the writ petition has been allowed by quashing the order dated 24.01.2019 as contained in letter no.562(S), by which, the authority has rejected the prayer for separation from service on voluntary retirement.

Facts

2. The brief facts of the case, as per the pleading made in the memo of appeal, required to be enumerated, are as hereunder:

3. It is the case of the writ petitioner that he was joined the service in the erstwhile State of Bihar vide notification No.2199 dated 16.6.1987 on the post of Assistant Engineer in Bihar Engineering Service in Road Construction Department and after bifurcation of the State of Bihar the petitioner opted for the State of Jharkhand.

4. The service of the petitioner was confirmed vide notification No. 4652 dated 03.07.2004 and the petitioner was given the benefit of first Assured Career Progression Scheme vide notification dated 16.5.2005 with effect from 09.08.1999 after completion of 12 years of continuous service. Further, case of the writ petitioner is that while, he was posted as Project Officer, MESO Project, Jamtara, he made an application in July, 2007 for getting voluntary retirement due to some family reasons but the said application remained pending till the date of filing of the writ application.

5. Although, there was no acceptance of his VRS application but a seniority list was published by the Department in the year 2009 where the name of the writ petitioner has been omitted. As aforesaid, pursuant to the order of this Court an order of rejection of the VRS application was passed in the month of January, 2019 as contained in letter No.562 (S) dated 24.01.2019 issued under the signature of Under Secretary to the Government, Road Construction Department indicating that in the light of Paragraph 1 of the Circular of the Finance Department No. 6190 dated 27.4.1979, the claim of the writ petitioner for voluntary retirement is rejected and it was further directed in the said letter that the writ petitioner should first join at the Headquarter fixed during the period of suspension. It has also been pointed out in the said letter that the writ petitioner has not completed 20 years of service.

6. It is evident from the factual aspect that the writ petitioner has made an application for separation from service on voluntary retirement, in view of the provision of Rule 74(b) of the BIHAR SERVICE CODE (herein after refer as Code) read with circular dated 27.04.1979 issued by the Government of Bihar but the said application has been rejected vide order dated 24.01.2019 rejecting the prayer for separation from service on the ground that the writ petitioner has not completed 20 years of service, as per the requirement of Rule 74 of the Code and the circular dated 27.04.1979.

7. The writ petitioner, being aggrieved with the same, has preferred writ petition being W.P.(S) No.516 of 2015. The said writ petition has been allowed by quashing and setting aside the order dated 24.01.2019 with a direction upon the Respondent-State to calculate the retirement benefit of the writ petitioner and pay the same including settlement of pension in accordance with law and with a further direction that the entire exercise should be completed within a period of four months from the date of receipt of copy of the order.

8. The appellant-State, being aggrieved with