Doddakale Gowda, J.
2. The chequered career of Petitioner in service depicts his adventurous spirit. He having joined service as Assistant Surgeon Gr. II, on 28th May, 1958 in Health and Family Welfare Department of Karnataka, became an Associate Professor; went for higher studies to U.K. between 13th September, 1959 to 31st May, 1965; served in army from 16th January, 1967 to 23rd May, 1969; and in particular, in field service from 16th June, 1967 to 23rd May, 1969; went for Surgical studies to U.S.A. from 12th October, 1971 to 28th July, 1975. On return, worked as Associate Professor in different institutions and later on has opted for voluntary retirement. He claimed that period of service rendered in army should be converted into double the service for purpose of reckoning qualifying service in order to confer pensionary benefits as per Government Order No. GAD (S-) 84 SRR 63, dated 21st August, 1963; and Official Memorandum No. PLM 692 MMC 65, dated 23rd September, 1965. Periods during which he went abroad for higher studies have been regularised as per Rule 53(b)(ii) of the Karnataka Civil Services Rules (hereinafter referred to as the 'Rules') and as per Order No. HMA 165 MMC 75, dated 28th October, 1975 respectively.
3. By an application, dated 10th June, 1981 (Annexure-A) he sought for voluntary retirement. Director of Health and Family Welfare Services in its letter dated 25th June, 1983 recommended for according sanction for voluntary retirement in view of completion of 20 years of service as on 22nd January, 1982 as certified by Account General, Karnataka, treating the period from 1st September, 1981 to 22nd January, 1982 as leave at his credit.
By representations dated 26th May, 1983, 25th August, 1983 and 20th April, 1984 (Annexure-E, F and G) requested for issue of necessary notification accepting voluntary retirement with effect from 22nd January, 1982, the date on which he had completed qualifying service of 20 years and to process pension papers. Repeated reminders yielded no result though years rolled and Director of Health and Family Planning Officer or the Account General, Karnataka had no objection to permit him voluntary retirement.
The prayer in this Writ Petition is to declare that he has voluntarily retired from service in terms of Rule 285 of K.C.S. Rs. and Government Orders, Circulars issued on this aspect from time to time.
4. Amended Rule 285 of K.C.S. Rs. provides for payment of retiring pension; exercise of option for voluntary retirement on completion of qualifying service of not less than 20 years subject to certain terms and conditions as incorporated in sub-rule (2) of Rule 285; sub-rule (3) provides for voluntary retirement on attaining the age of 50 years; and sub-rule (4) provides for compulsory retirement in public interest by Government.
As the instant case is a voluntary retirement on completion of qualifying service of 20 years, terms and conditions on which a Government servant can obtain voluntary retirement are set out.
Under Clause (i) of sub-rule (2) of Rule 285 of K.C.S. Rs. a Government servant opting for voluntary retirement is required to give three months notice in writing to appointing authority; the scheme is voluntary, initiative resting with Government servant himself; as per Clause (iv) Government servant retiring under scheme is entitled to retiring pension/gratuity; Government servant retiring under this scheme is entitled to weight-age upto 5 years, subject to the condition that the qualifying service after allowing weightage shall not, in any case, exceed the qualifying service which the Government servant would have had, if he had retired on attaining the age of superannuation vide Clause (v). Under Clause (ix) a notice of less than three months may be accepted by appointing authority in deserving cases, with the prior approval of Government. Under Clause (x) a notice of voluntary retirement may be withdrawn subsequently, only with the approval of appointing authority within the intended date of retirement and on establishing that there is a material change in circumstances in consideration of which the notice was originally given; Clause (xi) of sub-rule (2) of Rule 285 essential to decide this case, reads thus :
'The voluntary retirement shall not become effective merely on the ground that a notice to that effect has been given by the Government servant, unless it is duly accepted by the appointing authority. Such acceptance may be generally given in all cases except those.
(a) in which disciplinary proceedings are pending or contemplated against the Government servant concerned for the imposition of any of the penalties specified in Clause (v) to (viii) of Rule 8 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, or
(b) in which prosecution is contemplate for may have been launched in Court of law against the Government servant concerned.
Where it is proposed to accept the notice of voluntary retirement in such cases, prior approval of Government in case of gazetted Government servants and of the Head of the Department in other cases should invariably be obtained.'
Rest of the clauses are not relevant for decision of this case and hence not referred to.
5. Sri U. L. Narayana Rao, Learned Counsel for petitioner, vehemently contended that a right conferred on a Government servant to seek voluntary retirement under the scheme is absolute and on fulfilment of conditions embodied in Clause (xi) extracted above Government have no choice of withholding permission and it must be deemed that he has retired from service with effect from 22nd January, 1982.
In order to know the reasons as to why permission is withheld and why an unwilling Government servant is forced to continue in service, Sri S. V. Narasimhan, Learned High Court Government Pleader, was directed to take notice on 23rd January, 1985 and to ascertain reasons for not permitting voluntary retirement. He submitted with reference to records that Government is contemplating initiation of disciplinary enquiry and on that account permission is withheld. Inter-alia, he contended that as there is no decision by Government to accord sanction, question of declaring him as having retired with effect from 22nd January, 1982 or any date subsequent thereto will not arise.
6. Thus, the questions that arise for consideration are whether Government is required to communicate its decision of withholding permission for voluntary retirement before expiry of the dates specified for retirement or not; and/or whether its indecision amounts to withholding of permission and/or postpone its decision indefinitely till Government servants attain the age of superannuation.
7. Undisputedly, as on 22nd January, 1982, the date on which petitioner intended to retire voluntarily, neither a departmental enquiry nor a criminal case was pending against him much less initiation of a criminal case was contemplated. Further, as opined by Director of Health and Family Welfare Services and Officer of the Account General, Karnataka, petitioner has completed 20 years of qualifying service to exercise option for voluntary retirement without loss of pensionary benefits. No doubt, Clause (xi) states that voluntary retirement shall not be effected merely on the ground that notice to that effect has been given to Government, unless it is duly accepted by appointing authority. Scope and ambit of power to withhold permission has to be examined in the light of object intended to be achieved by the scheme, Prior to amendment of Art. 285 of K.C.S. Rs. a Government servant who had attained the age of 50 years and against whom no enquiry was pending or there was no proposal to hold any enquiry could have, by giving three months notice, sought for voluntary retirement with proportionate pension. Present scheme, as embodied in Rule 285, enables a Government servant to retire either on completion of qualifying service of 20 years or on attaining 50 years of age by giving three months notice and such Government servant is entitled to retiring pension. Voluntary retirement is generally accepted except in cases where a disciplinary proceeding is pending or contemplated against such Government servant and a prosecution is contemplated or pending. Exercise of power by Government must be in consonance with the object intended to be achieved by the scheme, so that corresponding right conferred on a Government servant can effectively be enforced. Words 'generally be given' connotes permission should be sanctioned without any reservation except in cases falling under sub-Cls. (a) and (b) of Clause (xi) of sub-rule (2) of Rule 285 of K.C.S. Rs. Scheme enjoins Government to take a decision one way or the other and communicate the same to Government servant. Right conferred on a Government servant cannot be denied or defeated by not taking a decision. Decision to initiate disciplinary proceeding, if any, after notice to Government Pleader of this Writ Petition, is of no relevance, as on the relevant date, i.e., 22nd January, 1982, neither a disciplinary proceeding was pending nor a proceeding was contemplated.
8. Supreme Court in B. J. Shelat v. State of Gujarat and Another [1978-II L.L.J. 34], while examining the scope of proviso to Clause (ii) of sub-rule (2) of Rule 161 of Bombay Civil Services (Conduct, Discipline and Appeal) Rules, 1932 which reads thus : at page 37.
'Provided that it shall be open to the appointing authority to withhold permission to retire to a Government servant who is under suspension or against whom departmental proceedings are pending or contemplated, and who seeks to retire under this sub-clauses.'
which in turn in parametric with proviso (b) of sub-rule 56(a) of Fundamental Rules has held that a right conferred on a Government servant for voluntary retirement cannot be denied by not taking a decision. Relevant portion reads thus : at page 38.
'In the case before us it is incumbent on the appointing authority to withhold permission to retire on one of the conditions mentioned in the proviso. We are of the view that the proviso contemplates a positive action by the appointing authority. The words 'it shall be open to the appointing authority to withhold permission' would indicate that the appointing authority has got an option to withhold permission and that could be exercised by communicating its intention to withhold permission to the Government servant. The appointing authority may have considered the question and might not have taken a decision either way or after considering the facts of the case might have come to the conclusion that it is better to allow the Government servant to retire than take any action against him. For the proviso to become operative it is necessary that the Government should not only take a decision but communicate it to the Government servant.'
Supreme Court has further stated : at p. 39
'On a consideration of Rule 161(2)(ii) and the proviso, we are satisfied that it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire on one of the grounds specified in the proviso.
11. In the view we have taken that the appointing authority has no jurisdiction to take disciplinary proceedings against a Government servant who had effectively retired.....'
Clause (xi) of sub-rule (2) of Rule 285 of K.C.S. Rs. is the same as proviso (b) of Rule 56(a) of Fundamental Rules. Principles enunciated in Shelat's case squarely apply to the facts of the present case. In the instant case, there is no decision of Government to withhold permission for voluntary retirement nor has it been communicated to petitioner.
9. In the result, this Writ Petition succeeds. It is declared that petitioner has retired from service with effect from 22nd January, 1982 on which date petitioner has completed qualifying service of 20 years as opined by Director of Health and Family Welfare Services and the Accountant General, Karnataka. Rule made absolute.