JUDGMENT
Sanjay Misra, J.
1. By means of this writ petition, the petitioner seeks to challenge the order dated 28.11.1996 passed by the respondent No. 3 whereby the voluntary retirement of the petitioner has been accepted w.e.f. 29.1.1996 and the order dated 9.3.2000 whereby the respondent No. 2 has passed the order that the petitioner’s voluntary retirement should be effective from 28.11.1996.
2. It is the case of the petitioner that he was appointed as Octroi Moharrir in the year 1972 under the respondent No. 3. The petitioner has stated that he fell ill on 29.1.1996 and went on medical leave. Me was directed by an order dated 28.2.1996 to get himself medically examined by the Chief Medical Officer Bhadohi. However, on 25.9.1996, the petitioner was declared medically fit and he joined his duties on 26.9.1996. He was deputed for election duty on 29.9.1996 and 30.9.1996 whereafter the petitioner was given a show cause notice dated 4.10.1996 alleging therein that he had not appeared before the Chief Medical Officer. A reply was submitted by the petitioner to the said notice on 14.10.1996. However, by application dated 2.11.1996 contained as Annexure-7 to the writ petition, the petitioner sought voluntary retirement. This application was given by the petitioner to the respondent No. 3/4. However, the petitioner has submitted that on reconsideration he moved an application dated 22.11.1996 to the District Magistrate for withdrawing his voluntary retirement. A true copy of such application has been enclosed with the writ petition as Annexure-8. The petitioner states that by an order dated 28.11.1996, he has been retired from service by the respondent No. 3 w.e.f. 29.1.1996. Feeling aggrieved the petitioner moved an application before the Commissioner Varanasi Division /Prescribed Authority Nagar Palika Parishad Gopiganj on 17.12.1996 for setting aside the order and to be treated as in service. The Commissioner Varanasi considered the application of the petitioner and by his order dated 9.3.2000 directed that the voluntary retirement of the petitioner should be w.e.f. 28.11.1996 and ordered that payment of entire dues pension etc. should be made to the petitioner treating him to be in service upto 27.11.1996. It is further stated that order for payment of his retirement benefits was passed, however, the same was denied to the petitioner by a subsequent order of the respondent No. 2 on the ground that the petitioner had not completed 50 years age and 20 years service.
3. A counter affidavit has been filed on behalf of the respondents No. 3 and 4 wherein it has been stated that since the petitioner had not worked from 29.1.1996 therefore, he was directed to appear before the Chief Medical Officer Bhadohi. The petitioner did not appear before him. The certificate produced by the petitioner were considered to be forged. It has further been averred that the petitioner submitted his application for voluntary retirement on his own free will before the respondent No. 3/4 which was accepted on 28.11.1996. It has been stated that the application dated 22.11.1996 made by the petitioner for withdrawing his voluntary retirement was not made before the respondent No. 3/4 It has been stated that the application dated 22.11.1996 made by the petitioner for withdrawing his voluntary retirement was not made before the competent authority but it was made before the District Magistrate who was not the authority concerned with respect to the services of the petitioner. It has also been stated that the District Magistrate forwarded the said application of the petitioner to the respondent No. 3/4 and was received by the office of the answering respondent on 5.12.1996. It has been stated that the order dated 28.11.1996 was served on the petitioner on very same day. No such application for withdrawing his retirement application was made by the petitioner before the competent authority i.e. President Nagar Palika Parishad Gopiganj. It has further been stated that after eight days of the acceptance of his voluntary retirement, the petitioner received his amount of group insurance. It has also been stated that the voluntary retirement of the petitioner stands confirmed by the Commissioner in appeal. In para 16 of the counter affidavit, it has been averred that the petitioner has availed the benefit of group insurance, G.P.F. and other funds and that he has alternative remedy of revision before the State and that this writ petition has been filed by a delay of one year without any explanation.
4. In the rejoinder affidavit the petitioner has re-iterated his averments of the writ petition.
5. Learned counsel for the petitioner has placed reliance on a decision of this Court in the case of Shanaker Dutt Shukla v. President Municipal Board and Ors. Reported in AIR 1956 Alld. Page 70 and contended that where resignation was to come into effect from a future date, the same can be withdrawn before that date. Learned counsel for the petitioner has also cited decision of the Supreme Court rendered in the case of union of India v. Gopal Chandra and Ors. reported in AIR 1978 SC. Page 964 and has submitted that a prospective resignation can be withdrawn at any time before it becomes effective. Relying upon the decision of the Supreme Court in the case of Balram Gupta v. Union of India and Anr. reported in 1987 S.C. 2354, Learned counsel for the petitioner submits that withdrawal notice can be made well within time prior to the expiry of the notice period therefore, an order to retire prospectively on expiry of notice period would be illegal if such notice is withdrawn before expiry of notice period.
6. A perusal of the application for voluntary retirement indicates that the petitioner had sought said retirement not from a prospective date but the application dated 2.11.1996 of the petitioner addressed to the President Nagar Palika Parishad indicated that he wants to retire due to health reason. There is no mention that the letter of the petitioner was to operate or was to be accepted from same later date. A perusal of the order dated 28.11.1996 indicates that while considering the said application, the respondent No. 4 not only accepted the voluntary retirement of the petitioner but also recorded that the petitioner has been absent from this duties from 29.1.1996 and therefore, his, voluntary retirement would be accepted w.e.f. said date. The petitioner feeling aggrieved against the said order preferred his appeal before the Commissioner. In this appeal it was prayed by the petitioner that the order dated 28.11.1996 may b eset aside, the petitioner may be reinstated and for the period during which he was ill, he be paid the medical allowance and considered to be on duty. The said appeal is dated 17.12.1996. The Commissioner while considering the said appeal has passed the order to the effect that voluntary retirement ought to have been accepted w.e.f. the date of its acceptance and not from the date since when the petitioner is alleged to have been absent. Consequently the Commissioner ordered that the petitioner will be deemed to have been retired w.e.f. 28.11.1996. The submission of learned counsel for the petitioner that he has withdrawn his application by the letter dated 22.11.1996 which is before it was accepted cannot be accepted in view of the fact that such withdrawal dated 22.11.1996 was not made by the petitioner before the competent authority. Such application for withdrawal appears to have been made before the District Magistrate who has no authority to consider the same. It is alleged in the counter affidavit that said application was forwarded by the District Magistrate to the competent authority and was received by the competent authority on 5.12.1996 by which time voluntary retirement had already been accepted. The contention of the petitioner that said application was received in the office of the competent authority on 27.1 1.1996 is not supported by any evidence what so ever. In the absence of such evidence, this Court cannot come to a definite conclusion as to whether the application for withdrawal was received by the competent authority before he accepted the voluntary retirement application of the petitioner. Such being the case, ratio of decision referred to above and as cited by the petitioner would not be applicable in the present case, in as much as the application for voluntary retirement was not to be effective from the prospective date. Such application was accepted prior to any application for withdrawal was received by the competent authority. Before the appellate authority this issue was raised by the petitioner but there is no evidence on record to indicate that the said application for withdrawal was made by the petitioner prior to acceptance of his voluntary retirement application by the competent authority. The question which would have bearing in this case is as to whether application for withdrawal was made before the acceptance of the voluntary retirement and whether it was made to the competent authority. In the present case, although the petitioner states that his application for withdrawal was dated 22.11.1996 i.e. before the acceptance of his voluntary retirement but admittedly such application was not made before the competent authority. The petitioner has not stated that he was prevented from making such application for withdrawal before the competent authority. No explanation or reason has been brought forward by the petitioner for moving such application of withdrawal before the District Magistrate who under the rules has no jurisdiction or power to pass any orders upon the same. In absence of any such reasons the petitioner’s submission/averment that his application for withdrawal was made prior to acceptance of his voluntary retirement cannot be accepted. The contesting respondents have in the counter affidavit stated that the petitioner has been paid his group insurance GPF and other funds. The said averment of the contesting respondents have not been specifically denied by the petitioner. Respondents have also filed photo copies of the orders regarding payment of the aforesaid sums to the petitioner, therefore, the petitioner having accepted the same would not be entitled to any relief on that account.
7. For the aforesaid reasons, no ground has been made out requiring interference by this Court in the order impugned. Consequently the writ petition tails and is dismissed. There will be no order as to costs.