JUDGMENT
Jayasimha Babu, J.
1. The petitioner was employed as a teacher in the services of the first respondent school. He submitted a letter on 21-10-1994 to the school authorities stating that on account of his physical weakness, he was unable to continue in service as a physical Education Teacher in the School and that therefore he may be permitted to go on voluntary retirement with effect from 31-1-1995. The said request of the petitioner was accepted by the first respondent school Authorities as could be seen from the letter dated 22-10-1994 sent by the Correspondent of the first respondent to the petitioner, wherein it was stated that” …. we accept your request for voluntary retirement with effect from 31-1-1995 …” Before 31st January, 1995 arrived, the petitioner changed his mind and he again wrote a letter on 21-12-1994 to the school authorities (first respondent) stating that he recovered from his illness and regained his lost strength, that he is physically and medically fit enough to do his work at school effectively and that therefore he may be permitted to withdraw his earlier application seeking voluntary retirement with immediate effect. This letter dated 21-12-1994, according to the respondents was not even signed by the petitioner. Nevertheless the respondents treated the said letter as a request from the petitioner seeking permission to withdraw his earlier request made for voluntary retirement. The first respondent school authorities sent a reply, dated 24th January, 1995 whereunder the petitioner was informed that under the relevant provisions of the Fundamental Rules applicable to the petitioner, the request for voluntary retirement or the withdrawal of the voluntary retirement after acceptance, as the case may be could be done with the approval of the appointing authority before the expiry of the period of notice and that being the appointing authority the school was not willing to approve the withdrawal of the earlier application submitted by the petitioner for voluntary retirement.
2. The petitioner has filed the present writ petition seeking to quash the said order dated 24-1-1995 and to direct the respondents to take him back in service. The petitioner has continued to be in service even after 31st January, 1995 by reason of the interim direction given by this Court.
3. A counter-affidavit has been filed on behalf of the respondents, in which it is stated that a writ petition cannot lie against the first respondent school and that since the first respondent school authorities being the appointing authorities having chosen not to accept the withdrawal of the application seeking permission for voluntary retirement, the respondents cannot now be compelled to retain the petitioner in service.
4. Mr. R. Gandhi, learned senior counsel appearing for the petitioner submitted that the objection of the first respondent with regard to the maintainability of this writ petition is wholly untenable, in view of the law declared by this Court in Association of University Teachers v. State of Tamil Nadu, 1990 Writ L.R. 51 (Supp.), wherein it was held by a Division Bench of this Court that the educational institutions, receiving aid from the Government have the character of “The Authorities” and come within the scope of the definition of ‘State’ in Art. 12 of the Constitution of India and that a writ petition as against such Institutions is maintainable. It is not in dispute that the first respondent school receives aid from the State. The preliminary objection raised on behalf of the respondents in this regard has therefore, to be overruled.
5. As regards the right asserted by the respondents to withhold their consent for the application for withdrawal of the letter of voluntary retirement, these contention of the respondents has also to be rejected in the light of the law laid down by the Apex Court in the case of Balram Gupta v. Union of India 1987 II CLR 412, wherein the Supreme Court held that once notice was given it became operative immediately, if it was received by the Government, and automatically brought the dissolution of contract after the expiry of the notice period. The Apex Court further held that the dissolution of contract would be brought about only on the date indicated and upto that date the employee continues to be employed in the institution or the Government and that such an employee would be at liberty and is entitled independently without Sub-rule (4) of Rules 48-A of the Pension Rules which rules were considered in that decision, to withdraw, his notice of voluntary retirement. The law so laid down by the Supreme Court has reiterated the law declared by the Constitution Bench of the Supreme Court in the case of Jai Ram v. Union of India , wherein it was held that it is always open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but he can be allowed to do so only as long as he continues in service.
6. In this case, it is clear that the petitioner was in service when he applied to the employer for permission to withdraw the notice of voluntary retirement and the application so made by him was perfectly competent.
7. Learned counsel for the first respondent, however, submitted that it was upto the employer either to accept or to reject such a request and that if the employer rejected the request that would be the end of the matter.
8. This submission made by learned counsel for the first respondent has also to be rejected. The rule which provides for the appointing authority to approve the request of an employee for withdrawal of his earlier application is not intended to confer an arbitrary power on the employer. The power so conferred on the employer is coupled with a duty and the same is required to be exercised reasonably, having regard to the facts and circumstances of the case. As pointed out by the Supreme Court in Balram Gupta v. Union of India 1987 II CLR 412, approval is not ipso dixit of the appointing authority, who as a statutory authority must have acted reasonably and rationally.
9. The respondents have not given any reason as to why the request of the petitioner for withdrawal could not be approved by them. All that is asserted in the notice dated 24-1-1995 sent by the first respondent school authorities to the petitioner is that as per the relevant Government Order, the appointing authority does not approve the withdrawal of the application of voluntary retirement sent by the petitioner. This can hardly be said to be a reason for withholding approval for the application sent by the petitioner for withdrawal of his earlier notice seeking permission to go on voluntary retirement.
10. In the counter-affidavit filed in this case also no reasons are set forth, excepting the mention about the employment of another employee by the school authorities, after the expiry of the said notice period. The cannot be a valid reason for rejecting the petitioner’s legitimate claim for withdrawing his earlier notice of voluntary retirement for which application had been made long prior to the date with effect from which the petitioner has desired to retire voluntarily. The respondent have acted unreasonably in not accepting the petitioner’s request and such action of the respondents in refusing to accept the request of the petitioner, who had been serving the Institution for over twenty years must be characterized as grossly unreasonable and arbitrary. The impugned proceedings dated 27-12-1994 are quashed, as they cannot be sustained. The petitioner shall be treated as being in service and the notice of voluntary retirement shall also be treated as having been withdrawn by the petitioner. The petitioner shall be eligible for all the consequential reliefs that may flow from this declaration.
11. The writ petition is allowed. No costs.
12. Petition allowed.