JUDGMENT
Tipnis, J.
1. By this petition the petitioner seeks a writ or direction to the respondents compelling them to treat the petitioner as having retired from the services of the then Bombay Housing and Area Development Board/Authority in pursuance to the notice of voluntary retirement issued by the petitioner on 28-2-1979. It is also prayed that consequently the subsequent order of dismissal passed on 30-11-1984 may also be quashed.
2. The petitioner was working as a Senior Assistant with the Bombay Housing and area Development Board at the relevant time. It is alleged that he issued the notice dated 28-2-1979 seeking permission to retire voluntarily under the voluntary retirement scheme introduced by the Government of Maharashtra under Finance Department Government Resolution dated 4-3-1978. Admittedly there was no reply to this communication. It is further an admitted position that the petitioner was suspended by an order dated 16-5-1979 and a departmental inquiry was held against him, in which inquiry the petitioner was found guilty of 3 charges (1) that he absented from his duties with effect from 18-7-1978 without prior permission and proper sanction and did not report to duties inspite of repeated letters from superiors. Thus he was guilty of wilful defiance of the orders of the superior authorities, (2) he engaged himself in business of running a cinema theatre at Vapi District Balsad while in service of the Bombay Housing and Area Development Board, and (3) that he was guilty of disobedience of the orders of the superiors to resume at the new station. The inquiry officer by his report dated 26.11.1981 though held the petitioner guilty of all the charges, he recommended punishment of reversion as Junior Assistant for a period of 2 years. The disciplinary authority, however, by its order dated 17-3-1982, although accepted the findings of the inquiry officer on all the charges decided to impose punishment of dismissal and, therefore, issued notice to the petitioner to show cause and ultimately the petitioner was dismissed from service.
3. It is further an admitted position that in appeal, the appellate authority confirmed the order of dismissal and dismissed the appeal by order dated 30-11-1984.
4. It is, thereafter, that the petitioner has filed the present petition in the year 1985 asserting that all the disciplinary proceedings and the consequential order of dismissal is illegal to retire voluntarily and the pursuance to his notice dated 28-2-1979 he must be deemed to have retired.
5. In reply to the petition the Board has taken up a stand that the purported scheme is not applicable to the petitioner in as much as it is applicable to the government servants having pensionable service and the petitioner was not having pensionable service. Secondly it was contended that the said circular was never adopted by the then Bombay Housing and Area Development Board now Maharashtra Housing and Area Development Board/Authority and as such the petitioner was not governed by the said scheme of voluntary retirement.
6. After having heard Shri Gursahani, learned Senior Counsel appearing in support of the petition and having gone through the entire record, we are unable to accept the submission of the learned counsel.
7. Firstly even assuming that the relevant resolution is applicable to the case of the petitioner, after reading the resolution we are of the clear view that the alleged or purported notice cannot be treated as proper notice in law at all. Secondly under the Resolution Government servants have to give notice of 3 months in writing. If we have a look at the notice it does not satisfy this requirement at all. Not only that but in fact it is difficult to hold that it is a notice under the scheme in as much as in the notice the petitioner has stated as under :
“I, therefore, humbly request your honour to kindly grant me leave or allow me to retire voluntarily under the scheme of Voluntary Retirement introduced by the Government of Maharashtra…………..”
Thus it is clear that it is a conditional proposal. Thirdly under the very scheme it is provided that generally such notice should be accepted in all cases except in which disciplinary proceedings are pending or contemplated against the government servant concerned for the imposition of a major penalty and the disciplinary authority, having regard to the circumstances of the case, is of the view that the imposition of the penalty of removal or dismissal from service would be warranted in the case. In the facts before us admittedly the petitioner was suspended on 16-5-1979. Assuming that the notice could be treated as notice under the scheme, the notice is dated 28-2-1979, therefore it could come into effect earliest on 28-5-1979 i.e., much after the petitioner was suspended. For all these reasons we are of the opinion that even assuming that the relevant resolution was attracted, petitioner cannot be deemed to have voluntarily retired in pursuance of the purported notice.
8. Apart from the aforesaid reasons what stares in the face is that although the petitioner gave notice on 28-2-1979 he participated in the departmental proceedings and after imposition of the penalty also preferred an appeal and it is only after the appeal was decided against the petitioner as late as in 1984 that the petitioner has chosen to file the present petition, seeking relief that he should be deemed to have retired from service in the year 1979. Under the circumstances aforesaid, we find it difficult to entertain the petition.
In the result petition fails and Rule is discharged. There shall be no order as to costs.