Khare, J. -- 1. This is a Letters Patent appeal against the dismissal of the writ petition challenging the order 6f refusal of approval to withdraw the notice of voluntary retirement.

2. Undisputed facts of the case are that appellant Narayan Prasad Kachhuaha was working as an upper division clerk in the office of the District & Sessions Judge at Hoshangabad. He was transferred from Hoshangabad to Ratlam by the order dated 16.11.94 of the High Court, as it was reported to the High Court by the District & Sessions Judge that the work and conduct of the appellant were not satisfactory. He joined at Ratlam on 9.12.1994. He was on the establishment of the District Judge, Ratlam from 9.12.1994 to 23.8.1995 but worked only for 18 days i.e. from 9.12.1994 to 11.12.1994 and 9.2.1995 to 27.2.1995. A departmental inquiry was initiated against him on 22.2.1995 for his continuous absence from duty. On 23.5.1995 the appellant sent an application (Annexure R. 12) by post to the District Judge, Ratlam seeking voluntary retirement from service from 23.8.1995 as per Rule 42(1)(a) of the M.P. Civil Service Pension Rules, 1976 as he had complated 20 years of qualifying service. This was on plain paper and not in the prescribed form No. 28.

3. On 28.6.1995 the appellant sent the application (Annexure R. 15) by post from Hoshangabad to the District Judge Ratlam for withdrawal of the notice of voluntary retirement. By the order dated 7.7.1995 (Annexure R. 17) the District Judge refused to accord approval to the withdrawal of the said notice.

4. The appellant's case is that his wife was ill. He himself fell ill. He sent an application for leave on 13.5.1995. He was having acute depression. He sent another application for leave on 30.5.1995. A medical certificate was also enclosed with that application. According to the petitioner the application for voluntary retirement was not in the prescribed form and therefore could not be acted upon. His request for withdrawal of the notice of voluntary retirement was turned down without considering the Circumstances of the case and without assigning any reason.

5. It is denied by the respondents that the appellant or his wife were ill. The petitioner did not relish his transfer to Ratlam. He did not want to work there. He was. continuously absent for a long time. He did not give any valid explanation for his absence from duty• in the Departmental inquiry. The application dated 23.5.1996 fulfilled the requirement of form No. 28 and therefore, it became effective as notice of voluntary retirement. The District Judge, Ratlam on consideration of the facts and circumstances of the case refused permission to withdraw the notice. One of the circumstances was the long absence of the petitioner from duty before and after such notice.

6. After hearing both the sides it was held by the Single Bench of this Court that there was no substance in the plea that the notice of voluntary retirement was not in the prescribed form. Similarly the pendency of departmental inquiry at the time of seeking the voluntary retirement could not render the operation of the notice ineffactive. The real contention of the petitioner was that the refusal of approval to withdraw the notice of voluntary retirement was without considering the circumstances of the case. This contention was also negatived and it was found that the decision of the Supreme Court in Balram Gupta v.Union of India AIR 1987 SC 2354, was distinguishable on facts.

7. In this appeal it is argued on behalf of the appellant that the ratio of the decision of the Supreme Court in Balram's case' (supra) is fully applicable to the case of the appellant. It is pointed out that no steps were taken to appoint any other person in the vacancy which would have arisen because of the notice of voluntary' retirement given by the' petitioner. He had a right to continued employment and he gave the notice seeking retirement due to "mental depression" and "long sickness of his wife". I