The right to voluntary retirement is substantive and governed by the rules in effect at the time of application, not amendments enacted thereafter.

ORDER

1. The present petition is filed under Article 226 of the Constitution of India seeking quashment of the orders Annexure P/7 & P/8 by which the application of the petitioner for voluntary retirement as per the unamended rule of 42-A of M.P. Civil Services Pension Rules, 1976 (hereinafter referred as Pension Rules) prevailing at the time of the submission of the application has been rejected and the same has been communicated by letter dated 9.2.2012.

2. Draped in brevity the facts of the case are that the petitioner was appointed on 17.12.1985 to the post of Assistant Surgeon/Insurance Health Officer in Directorate Employee State Insurance Services on an ad-hoc basis. The services of the petitioner were regularised for the post of Assistant Surgeon/Insurance Health Officer vide order dated 26.6.1987. The petitioner submitted an application for voluntary retirement and served a notice in Form 28 both on 21.3.2006.

3. On 7.4.2006 rule 42 and 42-A of the Pension Rules were amended and as per rule 42(1)(a) the minimum qualifying service for seeking voluntary retirement was raised from 15 years to 20 years. Further rule 42-A was amended and earlier the qualifying service was increased with such period that would take an employee to the date of superannuation subject to a capping that the total service does not exceed 33 years. However, after the amendment dated 7.4.2006, as per Rule 42-A, a period of up to 5 years could only be added in the qualifying service, with a capping that the total service does not exceed 33 years. A formal order was issued accepting the application for voluntary retirement of the petitioner vide Annexure P/4 dated 6.7.2006 though no such formal order of acceptance was required to be passed under rule 42 of Pension Rules. The Pension Payment Order (PPO) of the petitioner was prepared in 2009 where the total qualifying service of the petitioner was taken as 20 years 4 months and 5 days in contravention of Rule 42-A of the Pension Rules existing at the time of submission of application for voluntary retirement and issuance of notice Form 28.

4. Counsel for the petitioner submits that the application of the petitioner for voluntary retirement/Notice form 28 submitted on 21.3.2006 shall be governed by the unamended provisions of rule 42 and 42-A of Pension Rules as the amendment came into force on 7.4.2006. The said amendment would not be applicable retrospectively as an indefeasible right for seeking voluntary retirement under Rule 42 of Pension Rules has already vested on the date of filing of application itself. In support of his submission, he has placed reliance on the judgment passed in the case of Indra Prakash Bhatnagar v. State of M.P. (1985) MPLJ 229, Narayan Prasad v. District & Sessions Judge, Ratlam, 1999 (1) JLJ 169, Garikapati Veeraya v. N. Subbiah Choudhary, AIR 1957 SC 540, Dr. Umesh Sharma v. State of M.P. (WP No.4382/2006 decided by Coordinate Bench on 29.1.2007.

5. Per contra counsel for the respondents argued that in the application for voluntary retirement and Form 28, the petitioner had intended the date of voluntary retirement w.e.f. 20.4.2006 and prior to the expiration of the notice period, the amendment had come into effect on 7.4.2006 and, therefore, the amended rule of 42 & 42-A of Pension Rule shall govern the application for voluntary retirement. He argued that the judgments which have been relied upon by the counsel for the petitioner are distinguishable and not applicable to the facts of