Full Judgment Text
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REPORTABLE
SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTIO N
Civil Appeal No. 8421 Of 2018
(Arising out of S.L.P. (Civil) No.12601 of 2018)
STATE OF UTTAR PRADESH & ORS. ..APPELLANTS
VERSUS
ACHAL SINGH ..RESPONDENT
WITH
Civil Appeal No. 8422 of 2018
(Arising out of S.L.P. (Civil) No.18737 of 2018)
Civil Appeal No. 8423 of 2018
(Arising out of S.L.P. (Civil) No.18739 of 2018)
AND
Civil Appeal No. 8424 of 2018
(Arising out of S.L.P. (Civil) No.18741 of 2018)
J U D G M E N T
| ture Not Verified<br>lly siAgnedR byUN MISHRA, J.<br>LAM GULATI<br>2018.08.21<br>:37 IST | ||
|---|---|---|
| IS | T |
1. Leave granted.
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2. The State of Uttar Pradesh in the appeals is aggrieved by
common judgment and order dated 29.11.2017 passed by the Division
Bench of the High Court of Allahabad, allowing the writ petitions filed
by the respondents herein seeking voluntary retirement from the
Government services. Directions were issued to treat the respondents
to have retired from Government services with effect from 30.11.2017
and 31.12.2017.
3. The main question for consideration before us is as to whether
under Rule 56 of the Uttar Pradesh Fundamental Rules (hereinafter
referred to as the “Fundamental Rules”) as amended, an employee has
unfettered right to seek voluntary retirement by serving a notice of
three months to the State Government or whether the State
Government under the Explanation attached to Rule 56 of the
Fundamental Rules, is authorised to decline the prayer for voluntary
retirement in the public interest under clause (c) of Rule 56 of the
Fundamental Rules as applicable to the State of Uttar Pradesh.
4. The respondent Dr. Achal Singh was working as Joint Director
in Medical, Health and Family Welfare, Lucknow Region, Lucknow
filed an application dated 14.12.2016 for voluntary retirement w.e.f.
31.3.2017. Respondent – Dr. Ajay Kumar Tiwari was holding the post
of Joint Director, Medical, Health and Family Welfare, Devi Patan
Mandal, Gonda, filed an application on 28.2.2017 seeking voluntary
retirement w.e.f. 31.5.2017. Respondent Dr. Rajendra Kumar
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Srivastava was working as Senior Consultant, filed an application for
voluntary retirement on 15.4.2015 and respondent Dr. Rajiv
Chaudhary was working as Senior Consultant at District Hospital,
Raibareli, he sought voluntary retirement by filing an application on
3.12.2016. The applications remained unattended and no order had
been communicated, hence writ petitions were filed in the High Court.
The respondentsdoctors were members of the Provincial Medical
Services.
5. The High Court in the impugned judgment and order has
observed that it is the responsibility of the authorities to monitor the
health system in the State and they have to sincerely examine the
issues as to how the working of the Government hospitals can be
improved for the betterment of the general public and find out why
doctors are opting for voluntary retirement every day. The High Court
also observed that the doctors are not interested in joining the
Government service when fresh recruitments take place. The High
Court has also noted that posts of Medical Officers are not being filled
up on account of nonavailability of candidates. The High Court has
further noted that those who have entered into Government service
are continuously opting for voluntary retirement from service causing
serious scarcity of doctors in Government hospitals and Primary
Health Centres.
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6. The High Court in the impugned judgment has also referred to
the report of the MCI and the existing proportion of one doctor per
2000 population. In fact, the number of doctors is much smaller
than the number given in the MCI report. The High Court also
observed that the doctors are being posted, in spite of scarcity, on the
administrative posts that causes wastage of specialised talent. The
High Court has also observed that the authorities must provide
adequate infrastructure, working equipment, and a proper working
environment. The hospitals should be made excellent centres of health
care. It should be the object of the State Government to provide
doctors with good opportunities so as to retain them in services. At
the same time, the High Court has also observed that in order to
enhance the better medical facilities to the poor and needy people, it
would be appropriate to maintain a balance between the senior and
junior doctors in each Primary Health Centres in rural and urban
areas. There is a need to provide continuing medical education to
doctors and to hold conferences and seminars to exchange the latest
views/opinions/knowledge etc. and their performance in such events
should also be considered for promotion etc. At the same time, the
High Court has allowed the writ petitions and treated the doctors to
have retired voluntarily on the dates specified. Aggrieved thereby, the
State has come up in these appeals.
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7. It was urged by Mr. P.N. Mishra, learned senior counsel
appeared on behalf of appellant that as per Explanation attached to
Rule 56 of the Fundamental Rules as amended in the State of Uttar
Pradesh, it was open to the State Government to take a decision
whether to retire an employee voluntarily under Rule 56(a) duly
considering the public interest or decline the applications for
voluntary retirement. It was also submitted that there is no automatic
retirement on the expiry of the period of notice of three months served
under Rule 56 as applicable in the State of Uttar Pradesh. There has
to be an express order granting permission to retire voluntarily, only
thereafter an employee can be said to have retired voluntarily. There
is a scarcity of doctors in the Provincial Health Services in the State of
Uttar Pradesh, thus, the State Government has not accepted the
applications for voluntary retirement. The directions issued by the
High Court is based on a misinterpretation of Rule 56 of the
Fundamental Rules and is against the public interest.
8. It was contended by learned senior counsel appearing on behalf
of the appellants that in the case of Dr. Achal Singh, the State
Government has passed the order on 31.5.2017. The prayer for
voluntary retirement was rejected on the ground of lack of specialised
doctors and in public interest and the notice seeking voluntary
retirement under Rule 56 was rejected and in other cases, the
applications were kept pending. They further contended that Rule 56
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contemplates a notice and not a request for voluntary retirement. An
employee is not required to give reason while giving a notice for
voluntary retirement and in any such event, such reasons are not
justiciable. It is a prerogative of the employee to seek voluntary
retirement. The right of the employee to retire voluntarily corresponds
with the right of the State Government to retire him in the case of
deficiency in services. As held in Dinesh Chandra Sangma vs. State of
Assam, (1977) 4 SCC 441, the rule provides right to retire and not to
seek it. The acceptance of the appointing authority is required only
when the disciplinary enquiry is pending and its pendency has been
communicated to the employee. Once notice of three months is given,
the doctor is deemed to have retired and any action of attempting to
reject the notice of voluntary retirement after the said date is
ineffective in law. The decision has to be taken within a period of
three months, otherwise, the employee is automatically deemed to
have retired on the lapse of three months’ period. It was contended
that the court not to interfere with the principle of certainty of rule of
law may be applied and longstanding precedent of Dinesh Chandra
Sangma (supra) may not be dislodged and be applied to the cases at
hand. The only condition of voluntary retirement is fulfilled after
completion of 20 years of service and if it is allowed, it does not affect
the availability of doctors. The State has not taken care to recruit the
doctors. It is not permissible to withhold the order of voluntary
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retirement. In case this Court does not agree with the decision
rendered in Dinesh Chandra Sangma (supra), the matter may be
referred to a larger Bench. The view taken by the High Court in the
impugned judgment and order may be affirmed with the rider of an
imposition of the moratorium to balance the equities.
9. In order to appreciate the rival submissions, it is necessary to
consider the Fundamental Rules as amended in the State of Uttar
Pradesh. The same is somewhat different from the rules framed in
other States. Rule 56 of Fundamental Rules as amended in the State
of Uttar Pradesh, is extracted hereunder:
“56.(a) Except as otherwise provided in this Rule, every
Government servant other than a Government servant in
inferior service shall retire from service on the afternoon of the
last day of the month in which he attains the age of fifty eight
years. He may be retained in service after the date of
compulsory retirement with the sanction of the Government on
public grounds which must be recorded in writing, but he
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must not be retained after the age of 60 years except in very
special circumstances.
(b) A Government servant in inferior service shall retire from
service on the afternoon of the last day of the month in which
he attains the age of sixty years. He must not be retained in
service after that date, except in very special circumstances
and with sanction of the Government.
(c) Notwithstanding anything contained in clause (a) or clause
(b), the appointing authority may, at any time by notice to any
Government servant (whether permanent or temporary),
without assigning any reason, require him to retire after he
attains the age of fifty years or such Government servant may
by notice to the appointing authority voluntarily retire at any
time after attaining the age of fortyfive years or after he has
completed qualifying service of twenty years.
1 In the Medical, Health and Family Welfare Department in State Medical and Health
Services, the retirement age of Medical Officers in public interest has been approved as 62
years in place of 60 years with certain conditions vide Notification No.2324/SEC252017
7(237)/2014 dated 31.5.2017.
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(d) the period of such notice shall be three months:
Provided that
(i) any such Government servant may by order of the
appointing authority, without such notice or by a shorter
notice, be retired forthwith at any time after attaining the age
of fifty years, and on such retirement the Government servant
shall be entitled to claim a sum equivalent to the amount of
his pay plus allowances, if any, for the period of the notice, or
as the case may be, for the period by which such notice falls
short of three months, at the same rates at which he was
drawing immediately before this retirement;
(ii) it shall be open to the appointing authority to allow a
Government servant to retire without any notice or by a
shorter notice without requiring the Government servant to
pay any penalty in lieu of notice:
Provided further that such notice given by the Government
servant against whom a disciplinary proceeding is pending or
contemplated, shall be effective only if it is accepted by the
appointing authority, provided that in the case of a
contemplated disciplinary proceeding the Government servant
shall be informed before the expiry of his notice that it has not
been accepted:
Provided also that the notice once given by a Government
servant under clause (c) seeking voluntary retirement shall not
be withdrawn by him except with the permission of the
appointing authority.
(e) A retiring pension shall be payable and other retirement
benefits, if any, shall be available in accordance with and
subject to the provisions of the relevant Rules to every
Government servant who retires or is required or allowed to
retire under this rule.
Provided that where a Government servant who voluntarily
retires or is allowed voluntarily to retire under this rule the
appointing authority may allow him, for the purposes of
pension and gratuity, if any, the benefit of additional service of
five years or of such period as he would have served if he had
continued till the ordinary date of his superannuation,
whichever be less;
Explanation. (1) The decision of the appointing authority
under clause (c) to require the Government servant to retire as
specified therein shall be taken if it appears to the said
authority to be in public interest, but nothing herein contained
shall be construed to require any recital, in the order, of such
decision having been taken in the public interest.
(2) In order to be satisfied whether it will be in the public
interest to require a Government servant to retire under clause
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(c), the appointing authority may take into consideration any
material relating to the Government servant and nothing
herein contained shall be construed to exclude from
consideration –
(a) any entries relating to any period before such Government
servant was allowed to cross any efficiency bar or before he
was promoted to any post in an officiating or substantive
capacity or on an ad hoc basis; or
(b) any entry against which a representation is pending,
provided that the representation is also taken into
consideration along with the entry; or
(c) any report of the Vigilance Establishment constituted
under the Uttar Pradesh Vigilance Establishment Act,
1965.
(2A) Every such decision shall be deemed to have been taken
in the public interest.
(3) The expression appointing authority means the authority
which for the time being has the power to make substantive
appointments to the post or service from which the
Government servant is required or wants to retire; and the
expression ‘qualifying service' shall have the same meaning as
in the relevant Rules relating to retiring pension.
(4) Every order of the appointing authority requiring a
Government servant to retire forthwith under the first proviso
to clause (d) of this rule shall have effect from the afternoon of
the date of its issue, provided that if after the date of its issue,
the Government servant concerned, bona fide and in ignorance
of that order, performs the duties of his office his acts shall be
deemed to be valid notwithstanding the fact of his having
earlier retired.”
Reading of the aforesaid rule makes it clear that an employee
can be retired by the Government after he attains the age of 50 years
or Government servant may voluntarily retire at any time after
attaining the age of 45 years or after he has completed qualifying
service of 20 years under Rule 56(c). It is provided in the Rule 56 that
Government may retire a Government servant without any notice or by
serving a shorter notice and on such retirement, the Government
servant shall be entitled to claim a sum equivalent to the amount of
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his pay plus allowances, if any, for the period of notice or for the
period it falls short of three months at the same rates at which he was
drawing immediately before his retirement. It is also open to the
Government to allow a Government servant to retire without any
notice or by a shorter notice without requiring the Government
servant to pay any penalty in lieu of notice. The proviso to Rule 56(d)
makes it clear that the notice given by the Government servant against
whom a disciplinary proceeding is pending or contemplated, shall be
effective only if it is accepted by the appointing authority and provided
that in case of a contemplated disciplinary proceeding, the
Government servant shall be informed before the expiry of the notice
that it has not been accepted. It is also provided that once a notice is
given by a Government servant seeking voluntary retirement shall not
be withdrawn by him except with the permission of the appointing
authority.
Rule 56(e) provides that pension and other retiral benefits shall
be available to every Government servant, who retires or is required or
allowed to retire under the rule. Proviso to Rule 56(e) provides that
appointing authority at its discretion may allow benefits of additional
service of 5 years to such employees who voluntarily retires or is
allowed voluntarily to retire under the rule for the purposes of pension
and gratuity or of such period as he would have served if he had
continued till the ordinary date of his superannuation.
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10. The explanation attached to Rule 56 makes it clear that the
decision of the appointing authority under clause (c) of Rule 56 to
retire a Government servant shall be taken if it appears to be in public
interest. The explanation is applicable to both the exigencies viz.,
when Government retires an employee or when an employee seeks
voluntary retirement, not only when Government desires to retire an
employee in public interest. The Explanation attached to Rule 56 as
applicable in the State of Uttar Pradesh is clear and precise.
11. In our opinion, whether voluntary retirement is automatic or an
order is required to be passed would depend upon the phraseology
used in a particular rule under which retirement is to be ordered or
voluntary retirement is sought. The factual position of each and every
case has to be seen along with applicable rules while applying a
dictum of the Court interpreting any other rule it should be Pari
Materia. Rule 56(2) deals with the satisfaction of the Government to
require a Government servant to retire in the public interest. For the
purpose, the Government may consider any material relating to
Government servant and may requisition any report from the Vigilance
Establishment.
12. The respondents have relied on dictum in Dinesh Chandra
Sangma vs. State of Assam, (1977) 4 SCC 441, a threeJudge Bench of
this Court observed as under:
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“7. Before we proceed further we may read F. R. 56 as
amended:
F.R.56(a) The date of compulsory retirement of a
Government servant is the date on which he
attains the age of 55 years. He may be retained in
service after this age with sanction of the State
Government on public grounds which must be
recorded in writing and proposals for the
retention of a Government servant in service after
this age should not be made except in very
special circumstances.
(b) Notwithstanding anything contained in these
rules the appropriate authority may, if he is of
the opinion that it is in the public interest to do
so, retire Government servant by giving him
notice of not less than three months in writing or
three months' pay and allowances in lieu of such
notice, after he has attained fifty years of age or
has completed 25 years of service, whichever is
earlier.
(c) Any Government servant may, by giving notice
of not less than three months in writing to the
appropriate authority, retire from service after he
has attained the age of fifty years or has
completed 25 years of service, whichever is
earlier.
It is clear from the above that under F. R. 56(b) the
Government may retire a Government servant in the public
interest by giving him three months' notice in writing or three
months' pay and allowances in lieu thereof after he has
attained the age of fifty years or has completed 25 years of
service, whichever is earlier.
8. As is wellknown Government servants hold office during
the pleasure of the President or the Governor, as the case may
be, under Article 310 of the Constitution. However, the
pleasure doctrine under Article 310 is limited by Article 311(2).
It is clear that the services of a permanent Government servant
cannot be terminated except in accordance with the rules
made under Article 309 subject to Article 311(2) of the
Constitution and the Fundamental Rights. It is also well
settled that even a temporary Government servant or a
probationer cannot be dismissed or removed or reduced in
rank except in accordance with Article 311(2). The above
doctrine of pleasure is invoked by the Government in the
public interest after a Government servant attains the age of
50 years or has completed 25 years of service. This is
constitutionally permissible as compulsory termination of
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service under F.R. 56 (b) does not amount to removal or
dismissal by way of punishment. While the Government
reserves its right to compulsorily retire a Government servant,
even against his wish, there is a corresponding right of the
Government servant under F. R. 56(c) to voluntarily retire from
service by giving the Government three months' notice in
writing. There is no question of acceptance of the request for
voluntary retirement by the Government when the Government
servant exercises his right under F. R. 56(c). Mr. Niren De is
therefore right in conceding this position.
*
13. F.R. 56 is one of the statutory rules which binds the
Government as well as the Government servant. The condition
of service which is envisaged in Rule 56(c) giving an option in
absolute terms to a Government servant to voluntarily retire
with three months' previous notice, after he reaches 50 years
of age or has completed 25 years of service, cannot therefore
be equated with a contract of employment as envisaged in
Explanation 2 to Rule 119.
14. The field occupied by F. R. 56 is left untrammelled by
Explanation 2 to Rule 119. The words "his contract of
employment" in Explanation 2 are clinching on the point.
*
17. The High Court committed an error on law in holding that
consent of the Government was necessary to give legal effect to
the voluntary retirement of the appellant under F.R. 56(c).
Since the conditions of F.R. 56(c) are fulfilled in the instant
case, the appellant must be held to have lawfully retired as
notified by him with effect from August 2, 1976.
13. It was submitted that despite the absence of any identical
language, the rule involved in Dinesh Chandra Sangma (supra) is
comparable with Uttar Pradesh Fundamental Rules and therefore, the
judgment is binding. The submission based upon the same cannot be
accepted and Rule 56(b)(c) came up for consideration was somewhat
different and there was no such Explanation to Rule 56.
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14. In (supra) he was the District and
Dinesh Chandra Sangma
Sessions Judge at Dibrugarh in the State of Assam. On account of
domestic troubles, he did not want to continue after attainment of the
age of 50 years. He served a notice under Rule 56(c) as amended by
the Governor of Assam under Article 309 of the Constitution by
notification dated 22.7.1975. The formal notice was served upon by
him. The Government allowed him to retire from the State
Government Service and then there were certain developments in the
Government and Government sought to retrace its steps and passed
an order on 28.7.1976, countermanding its earlier order allowing him
to retire from service. The High Court dismissed the writ application
filed by him. The Fundamental Rule as applicable in the State of
Assam came up for consideration. In our opinion, it was quite
different. It is provided in the Fundamental Rule 56(b) as applicable
in the State of Assam that public interest was germane when a
Government servant retires. Under Rule 56(c), a Government servant
may retire by giving notice of not less than three months. Hence it
was observed that there was no question of acceptance of the request
for voluntary retirement by the Government when the Government
servant exercises his right under Rule 56(c). Not only the rule was
different it was passed on the concession also, however, the
Explanation given to Rule 56 in the State of Uttar Pradesh makes it
completely different and the provisions in F.R.56(c) is also quite
15
different. The rules as applicable in Assam for the purpose of
retirement by the Government is contained in F.R.56(b) which require
retirement in public interest whereas no such rider exist in F.R.56(c)
when employee seek voluntary retirement, whereas rule in the State of
Uttar Pradesh both provisions are conjointly read not only the
language is different and the explanation makes out the whole
difference.
15. The Explanation attached to Rule 56 as applicable in the State of
Uttar Pradesh makes it clear that when a decision is taken by the
authority under clause (c) of Rule 56, the right of an employee to retire
cannot be said to be absolute as in the case of resignation, voluntary
retirement is with retiral benefits whereas it may not necessarily follow
in case of resignation. The decision under the rules in U.P. is to be
based upon considering the public interest, whether it is a case of
retirement by the Government or a case of a Government servant
seeking voluntary retirement. The decision rendered in Dinesh
is distinguishable and was based on the
Chandra Sangma (supra)
differently couched rule. The Explanation added makes the provisions
different in the State of Uttar Pradesh. The decision in the case of
Dinesh Chandra Sangma (supra) cannot be said to be operative being
quite distinguishable.
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16. Reliance has also been placed by the learned counsel for the
respondents on the decision rendered by this Court in B.J. Shelat vs.
State of Gujarat , (1978) 2 SCC 202. The Court observed thus:
“7. Rule 161 of the Bombay Civil Services Rules provides for
the retirement of Government servants before attaining the age
of superannuation. Rule 161(1)(aa) provides
Notwithstanding anything contained in clause (a) :
(1) An appointing authority shall, if he is of the
opinion that it is in the public interest so to do,
have the absolute right to retire any Government
servant to whom clause (a) applies by giving him
notice of not less than three months in writing or
three months’ pay and allowances in lieu of such
notice:
*
Subrule (2)(ii) is as follows:
Any Government servant to whom clause (a)
applies may, by giving notice of not less than
three months in writing to the Appointing
Authority, retire from service … and in any other
case, after he has attained the age of 55 years.
There is no dispute that the Rule applicable is Rule 161
(2)(ii) and the appellant is entitled to retire by giving a notice of
not less than 3 months after he has attained the age of 55
years. Under Rule 161(1)(aa)(1) the appointing authority has
an absolute right to retire any Government servant to whom
clause (a) applies in public interest by giving him notice of not
less than three months in writing or three months’ pay and
allowances in lieu of such notice. But the Government servant
has no such absolute right. A right is conferred on the
Government servant under Rule 161(2)(ii) to retire by giving
not less than three months’ notice on his attaining the
prescribed age. Such a right is subject to the proviso which is
incorporated to the subsection which reads as
follows:
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 subclause.
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But for the proviso, a Government servant would be at liberty
to' retire by giving not less than three months’ notice in writing
to the appointing authority on attaining the prescribed age.
This position has been made clear by this Court in Dinesh
Chandra Sangma v. State of Assam, (1977) 4 SCC 441, where
the Court was considering the effect of the (Assam)
Fundamental Rule 56(c) which confers right on the
Government servant to voluntary retire. Rule 56(c) of the
(Assam) Fundamental Rules runs as follows :
(c) Any Government servant may, by giving
notice of not less than three months in writing
to the appropriate authority, retire from service
after he has attained the age of fifty years or has
completed 25 years of service, whichever is
earlier.
On a construction of the Rule this Court held that the
condition of service which is envisaged in Rule 56(c) giving an
option in absolute terms to a Government servant to
voluntarily retire with three months' previous notice, after he
reaches 50 years of age or has completed 25 years of service,
cannot be equated with a contract of employment as envisaged
in Explanation 2 to Rule 119 of the Defence of India Rules and
that Rule 56 is a statutory condition which operated in law
without reference to a contract of employment and when once
the conditions of Fundamental Rule 56(c) are fulfilled the
Government servant must be held to have lawfully retired. But
for the proviso to Rule 161(2)(ii), the decision of this Court in
the case cited above would be applicable and the right would
have been absolute. But the proviso has restricted the right
conferred on the Government servant. Under the proviso it is
open to the appointing authority to withhold permission to
retire to a Government servant when (1) he is under
suspension, or (2) against whom departmental proceedings are
pending or contemplated. Thus the permission to retire can be
withheld by the appointing authority either when the
Government servant is under suspension or against whom
departmental proceedings are pending or contemplated. It was
submitted on behalf of the appellant that admittedly he was
not under suspension on the date when he attained the age of
55 years and that no departmental proceedings were pending
or contemplated against him as required under the proviso. No
departmental proceeding was pending but on the facts one
cannot say that a proceeding was not under contemplation.
*
9. Mr. Patel next referred us to the meaning of the word
"withhold" in Webster's Third New International Dictionary
which is given as "hold back" and submitted that the
permission should be deemed to have been withheld if it is not
18
communicated. We are not able to read the meaning of the
word "withhold" as indicating that in the absence of a
communication it must be understood as the permission
having been withheld.”
The rule which came up for consideration in B.J. Shelat (supra)
was the Rule 161 of Bombay Civil Services Rules, 1959. The Rule
161(1) (aa) provides that appointing authority may retire a
Government servant in public interest by giving him a notice of not
less than three months or three months’ pay and allowances in lieu
thereof. Rule 161(2)(ii) did not employ the word public interest when
the Government servant seeks voluntary retirement. This has been
added to the Rule applicable in the State of Uttar Pradesh. Neither
there is any provision in the aforesaid rules that require to pass an
order to decide an application by a Government servant seeking
voluntary retirement that too considering the public interest. Under
the rules, it was open to the appointing authority to withhold the
permission to retire a Government servant who is under suspension or
against whom the departmental enquiry was pending or contemplated.
The rules considered by this Court in B.J. Shelat (supra) were different
and did not contain the provision like Explanation as incorporated in
the Fundamental Rule 56 as applicable in the State of Uttar Pradesh.
In that context, the discussion has been made and cannot be applied
to a rule differently couched in U.P.
19
17. Reliance was also placed on the decision rendered by this Court
in State of Bombay vs. United Motors, AIR 1953 SC 252 and Bengal
Immunity vs. State of Bihar, AIR 1955 SC 661, in which it has been
observed that Explanation can be read as proviso and it explain the
scope of the main provision and the Explanation becomes part of the
main section. There is no dispute with the aforesaid proposition. The
Explanation in rules in question has to be applied to both the
situations as contemplated in Rule 56(c) and is applicable to both the
exigencies not only when Government decides to retire an employee,
but also applicable where voluntary retirement is sought by an
employee. It cannot be said that no further restriction by explanation
has been added in a case where an employee has decided to obtain
voluntary retirement. The public interest is the prime consideration
on which authority has to decide such a prayer as per the rules
applicable in the State of Uttar Pradesh.
18. It was also urged that principles of certainty of rule of law are
squarely applicable in the present case. Reliance has been placed on
the decision of State of Haryana vs. S.K. Singhal, (1999) 4 SCC 293.
This Court considered Rule 5.32(b) of the Punjab Civil Services Rules
and observed thus:
“6. The said rule 5.32(B) of the Punjab Civil Service Rules,
(Vol.II) reads as follows:
“Rule 5.32(B)(1) At any time a government
employee has completed twenty years’ qualifying
service, he may, by giving notice of not less than
20
three months in writing to the appointing
authority retire from service. However, a
government employee may make a request in
writing to the appointing authority to accept
notice of less than three months giving reason
therefor. On receipt of a request, the appointing
authority may consider such request for the
curtailment of the period of notice of three
months on merits and if it is satisfied that the
curtailment of the period of notice will not cause
any administrative inconvenience, the appointing
authority may relax the requirement of notice of
three months on the condition that the
government employee shall not apply for
commutation of a part of his pension before the
expiry of the period of notice of three months.
(2) The notice of voluntary retirement given under
subrule (1) shall require acceptance by the
appointing authority subject to Rule 2.2, of
Punjab Civil Services Rules Vol.II :
Provided that where the appointing authority
does not refuse to grant the permission for
retirement before the expiry of the period
specified in subrule (1) supra, the retirement
shall become effective from the date of expiry of
the said period:
Provided further that before a government
employee gives notice of voluntary retirement
with reference to subrule (1) he should satisfy
himself by means of a reference to the
appropriate authority that he has, in fact,
completed twenty years’ service qualifying for
pension.”
*
8. It will be noticed that under Rule 5.32(B), a government
employee who has completed 20 years of qualifying service
may, by giving notice of not less than 3 months in writing to
the appointing authority, retire from service. There is provision
for requesting for relaxation of the notice period of 3 months
and for consideration thereof. As to what the appointing
authority is to do is governed squarely by subrule (2). That
subrule states that the notice of voluntary retirement given
under subrule (1) "shall" require acceptance by the appointing
authority subject to Rule 2.2 of the Punjab Civil Services Rules
(Vol.II). Acceptance of the request is subject to Rule 2.2 of the
Rules. But the proviso to subrule (2) of Rule 5.32(B) states
that if the permission to retire is not refused within the period
21
specified in subrule (1), the retirement shall become effective
from the date of expiry of the period. Therefore, it is clear that
if a person has completed 20 years qualifying service and has
given a notice under Rule 5.32(B) of 3 months (or if his request
for relaxation of 3 months is accepted), then the request "shall"
be accepted subject to invoking the provision of Rule 2.2 of the
Punjab Civil Services Rules (Vol.II). Under Rule 2.2, the "future
good conduct" of an employee is an implied condition of every
grant of pension. In other words, what all it means is that even
if the acceptance of the voluntary retirement is mandatory,
there is an obligation cast on the retired employee to maintain
good conduct after such retirement. The words "future good
conduct" mean good conduct after retirement. If the employee
does not continue to maintain good conduct after retirement,
then the Government can withhold or withdraw the pension or
a part of it in case he is convicted of serious crime or in case
he be guilty of grave misconduct. Such a decision to withhold
or withdraw the whole or part of pension would be final and
conclusive, that is to say, so far as the governmental hierarchy
is concerned. It will be noticed that Rule 2.2 does not obstruct
the voluntary retirement to come into force automatically on
the expiry of 3 months and it only enables withdrawal or
withholding of pension subject to certain conditions, to a
retired employee.
9. The employment of government servants is governed by
rules. These rules provide a particular age as the age of
superannuation. Nonetheless, the rules confer a right on the
Government to compulsorily retire an employee before the age
of superannuation provided the employee has reached a
particular age or has completed a particular number of years
of qualifying service in case it is found that his service has not
been found to be satisfactory. The rules also provide that an
employee who has completed the said number of years in his
age or who has completed the prescribed number of years of
qualifying service could give notice of, say, three months that
he would voluntarily retire on the expiry of the said period of
three months. Some Rules are couched in language which
results in an automatic retirement of the employee upon expiry
of the period specified in the employee's notice. On the other
hand, certain rules in some other departments are couched in
language which makes it clear that even upon expiry of the
period specified in the notice, the retirement is not automatic
and an express order granting permission is required and has
to be communicated. The relationship of master and servant in
the latter type of rules continues after the period specified in
the notice till such acceptance is communicated; refusal of
permission could also be communicated after 3 months and
the employee continues to be in service. Cases like Dinesh
Chandra Sangma v. State of Assam, (1977) 4 SCC 441, B.J.
Shelat v. State of Gujarat, (1978) 2 SCC 202 and Union of
22
India v. Sayed Muzaffar Mir, (1995) Supp (1) SCC 76 belong to
the former category where it is held that upon the expiry of the
period, the voluntary retirement takes effect automatically as
no order of refusal is passed within the notice period. On the
other hand H.P. Horticultural Produce Marketing & Processing
Corpn. Ltd. v. Suman Behari Sharma, (1996) 4 SCC 584
belongs to the second category where the byelaws were
interpreted as not giving an option "to retire" but only provided
a limited right to "seek" retirement thereby implying the need
for a consent of the employer even if the period of the notice
has elapsed. We shall refer to these two categories in some
detail.
*
13. Thus, from the aforesaid three decisions it is clear that
if the right to voluntarily retirement is conferred in absolute
terms as in Dinesh Chandra Sangma case by the relevant
rules and there is no provision in rules to withhold permission
in certain contingencies the voluntary retirement comes into
effect automatically on the expiry of the period specified in the
notice. If, however, as in B.J. Shelat case and as in Sayed
Muzaffar Mir case, the concerned authority is empowered to
withhold permission to retire if certain conditions exist, viz., in
case the employee is under suspension or in case a
departmental enquiry is pending or is contemplated, the mere
pendency of the suspension or departmental enquiry or its
contemplation does not result in the notice for voluntary
retirement not coming into effect on expiry of the period
specified. What is further needed is that the concerned
authority concerned must pass a positive order withholding
permission to retire and must also communicate the same to
the employee as stated in B.J. Shelat case and in Sayed
Muzaffar Mir case before the expiry of the notice period.
Consequently, there is no requirement of an order of
acceptance of the notice to be communicated to the employee
nor can it be said that noncommunication of acceptance
should be treated as amounting to withholding of permission.
*
18. In the case before us subrule (1) of Rule 5.32(B)
contemplates a “notice to retire” and not a request seeking
permission to retire. The further "request" contemplated by the
subrule is only for seeking exemption from the 3 months’
period. The proviso to subrule (2) makes a positive provision
that "where the appointing authority does not refuse to grant
the permission for retirement before the expiry of the period
specified in Subrule (1), the retirement shall become effective
from the date of expiry of the said period. The case before us
stands on a stronger footing than Dinesh Chandra Sangma
case so far as the employee is concerned. As already stated
23
Rule 2.2 of Punjab Civil Service Rules Vol.II only deals with a
situation of withholding or withdrawing pension to a person
who has already retired.”
19. Rule 5.32(b)(2) of Punjab Rules clearly provide that where the
appointing authority does not refuse to grant the permission to retire
before the expiry of the period in subrule (1), the retirement shall
become effective from the date of the expiry of the said date. There is
no such provision of notice becoming effective from the date of the
expiry of the period in the Fundamental Rules as applicable to the
State of Uttar Pradesh. In the context of the proviso, the notice
becomes effective from the date of expiry of the period, in that context
this Court has made observations in the aforesaid dictum that Rule
2.2 does not obstruct the voluntary retirement to come into force
automatically on the expiry of three months.
20. In the State of Haryana (supra) , this Court also observed that
some rules are couched in language, which results in an automatic
retirement of the employee upon the expiry of the period specified in
the employee’s notice. On the other hand, certain rules in some other
departments are couched in the language which makes it clear that
even upon expiry of the period specified in the notice, the retirement is
not automatic and an express order granting permission is required
and has to be communicated. The relationship of master and servant
in the latter type of rules continues after the period specified in the
24
notice till such acceptance is communicated and the refusal of
permission could also be communicated after three months and the
employee continues to be in service. It is the aforesaid later
observations made by this Court, which are squarely applicable to the
rule in question as applicable in the State of Uttar Pradesh.
21. In Himachal Pradesh Horticultural Produce Marketing &
Processing Corporation Ltd. vs. Suman Behari Sharma (1996) 4 SCC
584, the Court considered the language employed in the applicable
byelaws. It was observed that if the permission for voluntary
retirement is not granted, the employee would not be able to retire.
The Court observed:
“8. Clause (2) of the byelaw inter alia provides for voluntary
retirement from service of HPMC on completion of 25 years’
service or on attaining the age of 50 years whichever is earlier.
The employee, however, has a right to make a request in that
behalf and his request would become effective only if he is
'permitted' to retire. The words "may be...permitted at his
request" clearly indicate that the said clause does not confer
on the employee a right to retire on completion of either 25
years’ service or on attaining the age of 50 years. It confers on
the employee a right to make a request to permit him to retire.
Obviously, if request is not accepted and permission is not
granted the employee will not be able to retire as desired by
him. Para (5) of the byelaw is in the nature of an exception to
para (2) and permits the employee who has not completed 25
years’ service or has attained 50 years of age to seek
retirement if he has completed 20 years’ satisfactory service.
He can do so by giving three months' notice in writing. The
contention of the learned Counsel for HPMC was that though
para 5 of the byelaw relaxes the conditions prescribed by para
(2), the relaxation is only with respect to the period of service
and attainment of age of 50 years and it cannot be read to
mean that the requirement of permission is dispensed with.
On the other hand, the learned counsel for the respondent
submitted that as para 5 opens with the words
"Notwithstanding the provision under para (2)" and the words
"may be...permitted at his request" are absent that would
mean that the employee has a right to retire after giving three
25
months' notice and no acceptance of such a request is
necessary. We cannot agree with the interpretation canvassed
by learned counsel for the respondent. The byelaw has to be
read as a whole. Para (2) thereof confers a right on the
employee to request for voluntary retirement on completion of
25 years’ service or on attaining the age of 50 years, but his
desire would materialise only if he is permitted to retire and
not otherwise. Ordinarily, in a matter like this an employee
who has put in less number of years of service would not be on
a better fooling than the employee who has put in longer
service. It could not have been the intention of the rulemaking
authority while framing para 5 of the byelaw to confer on
such an employee a better and a larger right to retire after
giving three months' notice in writing. The words "seek
retirement" in para 5 indicate that the right which is conferred
by it is not the right to retire but a right to ask for retirement.
The word "seek" implies a request by the employee and
corresponding acceptance or permission by HPMC. Therefore,
there cannot be automatic retirement or snapping of service
relationship on expiry of three months' period.”
22. In .
Padubidri Damodar Shenoy vs. Indian Airlines Ltd. & Anr
(2009) 10 SCC 514, a question arose of voluntary retirement from
service which was not acceded to by the competent authority by
according approval. The matter travelled to this Court. It was held that
voluntary retirement did not come into force. The Court observed:
“33. There is nothing to indicate in Regulation 12 that if
employer decides to withhold approval of voluntary retirement,
such refusal of approval must be communicated to the
petitioner during the period of notice. True it is that notice of
three months for voluntary retirement given by an employee
covered by Clause (b) remains valid even if no communication
is received within the notice period but it becomes effective
only on its approval by the competent authority. As a matter of
fact, this seems to have been understood by both the parties.
34. The appellant issued a notice of voluntary retirement
under Regulation 12(b) on 3092005. The notice period was to
expire on 31122005. It is an admitted position that the
competent authority neither gave an approval nor indicated
disapproval to the appellant within the notice period of three
months. The employee never treated that there has been
cessation of employment on the expiry of three months’ notice
period inasmuch as he continued to attend his duties after 31
122005 until 3062006. It is only by his letter dated 86
2006 that the appellant requested the respondent to relieve
26
him in terms of his notice dated 3092005 by 3062006 and
he stopped attending work from 172006. The letter dated 8
62006 does not make any material difference as the fact of
the matter is that after the expiry of the notice period, the
appellant continued to attend his duties for many months
thereafter.
35. By the letter dated 1592006 the respondent
communicated to the appellant that his application for
voluntary retirement under Service Regulation 12(b) has not
been acceded to by the competent authority. Since the notice
for voluntary retirement by an employee who has not attained
55 years but has completed 20 years of continuous service,
under the proviso appended to Regulation 12(b), is subject to
approval by the competent authority and that approval was
not granted, the voluntary retirement of the appellant never
came into effect.”
23. In C.V. Francis vs. Union of India & Ors . (2013) 14 SCC 486, this
Court observed that it would depend upon the language used in the
rule whether notice for voluntary retirement would come into effect
automatically. There has to be a stipulation in the scheme providing
that even without acceptance of his application, it would be deemed
that the application for voluntary retirement had been accepted. There
is no such provision in the rules in question. In C.V. Francis (supra),
this Court observed:
“13. It is wellestablished that a voluntary retirement scheme
introduced by a company, does not entitle an employee as a
matter of right to the benefits of the Scheme. Whether an
employee should be allowed to retire in terms of the scheme is
a decision which can only be taken by the employer company,
except in cases where the scheme itself provides for retirement
to take effect when the notice period comes to an end. A
voluntary retirement scheme introduced by a company is
essentially a part of the company's desire to weed out the
deadwood.
14. The petitioner's contention that his application for
voluntary retirement came into effect on the expiry of the
period of notice given by him must fail, since there was no
such stipulation in the scheme that even without acceptance
of his application it would be deemed that the petitioner's
27
voluntary retirement application had been accepted. Once that
is not accepted, the entire case of the petitioner falls to the
ground. The decision in Tek Chand case (2001) 3 SCC 290 will
not, therefore, have any application to the facts of this case,
particularly when the petitioner's application for voluntary
retirement had not been accepted and he had been asked to
rejoin his services. The petitioner was fully aware of this
position as he continued to apply for leave after the notice
period was over.”
24. Decision in Tek Chand vs. Dile Ram (2001) 3 SCC 290 has been
relied upon by the respondents. This Court considered Rule 48A(2) of
the Central Civil Services (Pension) Rules, 1972, proviso to said rule
contained a provision where the appointing authority did not refuse to
grant the permission for retirement before the expiry of the period
specified in the said notice, the retirement shall become effective from
the date of expiry of the said period. The relevant observations are
extracted hereunder:
“31. It is not disputed that the appointing authority did not
refuse to grant the permission for retirement before expiry of
the period specified in the said application dated 5.12.1994
given by Nikka Ram. Further, no communication whatsoever
was made to him within the said period. During the course of
the argument before the High Court, the learned counsel for
the parties referred to Rule 48A of the Rules, of course,
placing their own interpretation. Since the said Rule is
material and has bearing on the question to be determined, it
is extracted below:
"48A. Retirement on completion of 20 years’
qualifying service. (1) At any time after a
government servant has completed twenty years'
qualifying service, he may, by giving notice of not
less than three months in writing to the appointing
authority, retire from service:
Provided that this subrule shall not apply to a
government servant, including scientist or technical
expert who is
(i) on assignments under the Indian Technical and
Economic Cooperation (ITEC) Programme of the
28
Ministry of External Affairs and other aid
programmes.
(ii) posted abroad in foreignbased offices of the
Ministries / Departments.
(iii) on a specific contract assignment to a foreign
Government, unless, after having been transferred
to India, he has resumed the charge of the post in
India and served for a period of not less than one
year.
(2) The notice of voluntary retirement given under
subrule (1) shall require acceptance by the
appointing authority:
Provided that where the appointing authority does
not refuse to grant the permission for retirement
before the expiry of the period specified in the said
notice, the retirement shall become effective from
the date of expiry of the said period.”
*
33. It is clear from subrule (2) of the Rule that the appointing
authority is required to accept the notice of voluntary
retirement given under subrule (1). It is open to the
appointing authority to refuse also, on whatever grounds
available to it, but such refusal has to be before the expiry of
the period specified in the notice. The proviso to subrule (2) is
clear and certain in its terms. If the appointing authority does
not refuse to grant the permission for retirement before the
expiry of the period specified in the said notice, the retirement
sought for becomes effective from the date of expiry of the said
period. In this case, admittedly, the appointing authority did
not refuse to grant the permission for retirement to Nikka Ram
before the expiry of the period specified in the notice dated
5.12.1994. The learned Senior Counsel for the respondent
argued that the acceptance of voluntary retirement by
appointing authority in all cases is mandatory. In the absence
of such express acceptance the government servant continues
to be in service. In support of this submission, he drew our
attention to Rule 56(k) of Fundamental Rules. He also
submitted that acceptance may be on a later date, that is, even
after the expiry of the period specified in the notice and the
retirement could be effective from the date specified in the
notice. Since the proviso to subrule (2) of Rule 48A is clear in
itself and the said Rule 48A is selfcontained, in our opinion,
it is unnecessary to look to other provisions, more so in the
light of law laid down by this Court. An argument that
acceptance can be even long after the date of the expiry of the
period specified in the notice and that the voluntary retirement
may become effective from the date specified in the notice, will
lead to anomalous situation. Take a case, if an application for
29
voluntary retirement is accepted few years later from the date
specified in the notice and voluntary retirement becomes
operative from the date of expiry of the notice period itself,
what would be the position or status of such a government
servant during the period from the date of expiry of the notice
period up to the date of acceptance of the voluntary retirement
by the appointing authority? One either continues in service or
does not continue in service. It cannot be both that the
voluntary retirement could be effective from the date of expiry
of the period mentioned in the notice and still a Government
servant could continue in service till the voluntary retirement
is accepted. The proviso to subrule (2) of Rule 48A of the
Rules does not admit such situation.”
*
35. In our view, this judgment fully supports the contention
urged on behalf of the appellant in this regard. In this
judgment, it is observed that there are three categories of rules
relating to seeking of voluntary retirement after notice. In the
first category, voluntary retirement automatically comes into
force on expiry of notice period. In the second category also,
retirement comes into force unless an order is passed during
notice period withholding permission to retire and in the third
category voluntary retirement does not come into force unless
permission to this effect is granted by the competent authority.
In such a case, refusal of permission can be communicated
even after the expiry of the notice period. It all depends upon
the relevant rules. In the case decided, the relevant Rule
required acceptance of notice by appointing authority and the
proviso to the Rule further laid down that retirement shall
come into force automatically if the appointing authority did
not refuse permission during the notice period. Refusal was
not communicated to the respondent during the notice period
and the Court held that voluntary retirement came into force
on expiry of the notice period and subsequent order conveyed
to him that he could not be deemed to have voluntary retired
had no effect. The present case is almost identical to the one
decided by this Court in the aforesaid decision.”
The rule which came up for consideration was entirely different.
There is no provision contained in rule in question in the case at hand
like the proviso to Rule 48A(2) referred to above due to which the
retirement shall become effective from the date of expiry of period of
notice in case the same was not refused.
30
25. In our considered opinion, under Rule 56 as applicable in the
State of Uttar Pradesh, notice of voluntary retirement does not come
into effect automatically on the expiry of the three months period.
Under the rule in question, the appointing authority has to accept the
notice for voluntary retirement or it can be refused on permissible
grounds.
26. In our opinion, the Rule 56(c) does not fall in the category where
there is an absolute right on the employee to seek voluntary
retirement. In view of the aforesaid dictum and what is held by this
Court, we find that the prayer made to make a reference to a larger
Bench, in case this Court does not follow the earlier decision is
entirely devoid of merit as on the basis of what has been held by this
Court in the earlier decisions, we have arrived at the conclusion. This
Court has authoritatively laid down the law umpteen number of time.
27. Reliance has also been placed on behalf of respondents on the
decision in Mahant Dhanmir vs. Madan Mohan, (1987) Supp SCC 528,
in which this Court observed that law should not be unsettled unless
there are compelling reasons. There is no dispute that the said
proposition has already been held. There is no question of law
unsettling the law but is of its application, which unfortunately
appears as against the interests of the respondents in view of language
employed in the rule in question. An attempt in vain has been made
31
by the respondents to wriggle out of the clutches of the various
decisions by raising the aforesaid argument.
28. It was also urged that the Rule 56(c) does not require the
employee to give reasons for voluntary retirement. No doubt under
Rule 56(c) there is no requirement for an employee to give any reason,
however, while considering the prayer, the appointing authority has to
keep in mind the public interest as provided in the Explanation
attached to F.R. 56.
29. Learned counsel also urged that outside the proviso to Rule
56(d), there is no general right of appointing authority to reject the
notice of voluntary retirement of an employee on the ground of public
interest. For this purpose, threefold submission has been made.
Firstly, that the principle of liberty under the Constitution and
specifically Part III of the Constitution requires that any restriction on
freedom and liberty must have the sanction of the law and that law
must be just, fair and reasonable. Presently, there is no law as
enacted under Article 309 of the Constitution. Secondly, the right of
Government employee and that of the Government are delineated in
terms of Fundamental Rules governing State Government employees.
Thus, if any Fundamental Rules do not restrict the general liberty of
an employee or do not empower the employer to act in a certain way,
an action otherwise would be impermissible. For this purpose,
32
reliance has been placed on
Moti Ram Deka vs. G.M., North East
Frontier Railway, (1964) 5 SCR 683. It was also submitted that public
interest restriction that applies to the State in the case of compulsory
retirement, applies on account of Article 311. The Court observed:
27. In this connection, it is necessary to emphasise that the
rulemaking authority contemplated by Art. 309 cannot be
validly exercised so as to curtail or affect the rights guaranteed
to public servants under Art. 311(1). Art. 311(1) is intended to
afford a sense of security to public servants who are
substantively appointed to a permanent post and one of the
principal benefits which they are entitled to expect is the
benefit of pension after rendering public service for the period
prescribed by the Rules. It would, we think, not be legitimate
to contend that the right to earn a pension to which a servant
substantively appointed to a permanent post is entitled can be
curtailed by Rules framed under Art. 309 so as to make the
said right either ineffective or illusory. Once the scope of Art.
311(1) and (2) is duly determined, it must be held that no Rule
framed under Art. 309 can trespass on the rights guaranteed
by Art. 311. This position is of basic importance and must be
borne in mind in dealing with the controversy in the present
appeals.
30. The reliance placed on Moti Ram Deka (supra) is of no avail as it
has no application to the instant case as no right conferred by Article
311 of the Constitution can be said to have been taken away and
service rule dehors of it can provide for the concept of public interest.
31. There is no doubt about it that Rule 56(d) provides that where a
disciplinary enquiry is pending or contemplated and in the case of
contemplated disciplinary enquiry, the Government servant shall be
informed before the expiry of notice that it has not been accepted. The
proviso to Rule 56(d) has no application where a disciplinary enquiry
33
is not contemplated or pending. When the proviso itself is not
applicable, in no case it will dilute the provisions of Explanation with
respect to exigencies mentioned in clause (c) of Rule 56.
32. The submission made upon principle of liberty and its
curtailment, the law must be just, fair and reasonable can also not be
accepted as the Fundamental Rules are statutory rules and have been
made by the Governor under section 241(2)(b) of the Government of
India Act,1935 and provisions of rule in question cannot be said to be
unfair, unreasonable and oppressive.
33. The concept of liberty not to serve when the public interest
requires cannot be attracted as retirement which carries pecuniary
benefits can be subject to certain riders. The general public has the
right to obtain treatment from super skilled specialists, not second
rates. In Jagadish Saran vs. Union of India, (1980) 2 SCC 768, the
Court observed thus:
"44. Secondly, and more importantly, it is difficult to
denounce or renounce the merit criterion when the
selection is for postgraduate or postdoctoral courses
in specialised subjects…. To sympathise mawkishly
with the weaker sections by selecting substandard
candidates, is to punish society as a whole by denying
the prospect of excellence say in hospital service. Even
the poorest, when stricken by critical illness, needs the
attention of superskilled specialists, not humdrum
secondrates. So it is that relaxation on merit, by
overruling equality and quality altogether, is a social
risk where the stage is postgraduate or postdoctoral.”
34
34. The concept of public interest can also be invoked by the
Government when voluntary retirement sought by an employee, would
be against the public interest. The provisions cannot be said to be
violative of any of the rights. There is already paucity of the doctors as
observed by the High Court, the system cannot be left without
competent senior persons and particularly, the High Court has itself
observed that doctors are not being attracted to join services and there
is an existing scarcity of the doctors. Poorest of the poor obtain
treatment at the Government hospitals. They cannot be put at the
peril, even when certain doctors are posted against the administrative
posts. It is not that they have been posted against their seniority or to
the other cadre. Somebody has to man these administrative posts
also, which are absolutely necessary to run the medical services which
are part and parcel of the right to life itself. In the instant case, where
the right of the public are involved in obtaining treatment, the State
Government has taken a decision as per Explanations to decline the
prayer for voluntary retirement considering the public interest. It
cannot be said that State has committed any illegality or its decision
suffers from any vice of arbitrariness.
35. The decision of the Government cater to the needs of the human
life and carry the objectives of public interest. The respondents are
claiming the right to retire under Part III of the Constitution such right
cannot be supreme than right to life. It has to be interpreted along
35
with the rights of the State Government in Part IV of the Constitution
as it is obligatory upon the State Government to make an endeavour
under Article 47 to look after the provisions for health and nutrition.
The fundamental duties itself are enshrined under Article 51(A) which
require observance. The right under Article 19(1)(g) is subject to the
interest of the general public and once service has been joined, the
right can only be exercised as per rules and not otherwise. Such
conditions of service made in public interest cannot be said to be
illegal or arbitrary or taking away the right of liberty. The provisions
of the rule in question cannot be said to be against the Constitutional
provisions. In case of voluntary retirement, gratuity, pensions, and
other dues etc. are payable to the employee in accordance with rules
and when there is a requirement of the services of an employee, the
appointing authority may exercise its right not to accept the prayer for
voluntary retirement. In case all the doctors are permitted to retire, in
that situation, there would be a chaos and no doctor would be left in
the Government hospitals, which would be against the concept of the
welfare state and injurious to public interest. In the case of voluntary
retirement, there is a provision in Rule 56 that a Government servant
may be extended benefit of an additional period of five years then an
actual period of service rendered by him there is the corresponding
obligation to serve in dire need.
36
36. It was urged that in the State of Tamil Nadu, Government has
amended the rules not to retire Government doctors, if there is any
scarcity of doctors it is open to the Government of Uttar Pradesh to
amend its rules. In India, the Government sponsored Medical Services
to cater to the needs of poorest of the poor and havenots otherwise
there is the commercialisation of the charitable medical profession. In
other States too, it is seen sometime that when a doctor is transferred
from one place to another, the doctor forwards application resigning
from the post or seeks voluntary retirement as he does not want to
move out and leave his lucrative private practice and joins the duty
only when he obtains posting back to the place of his choice. In such
a scenario people cannot be deprived of the services of good doctors. In
view of the scarcity of the doctors and the unfortunate privatisation
and commercialisation of the noble medical profession, for
maintaining the efficiency of the State Medical Services, the decision
taken by the Government is permissible as per rules and cannot be
interfered with. Unfortunately, the High Court has given the aforesaid
observations pointing out the shortage of specialised doctors and at
the same time has ultimately decided against the State Government
on wrong interpretation without considering the Explanation attached
to Rule 56 applicable in the State of Uttar Pradesh. The preface given
by the High Court is just opposite to its conclusion. The High Court
37
ought to have rejected and not to allow the prayer of voluntary
retirement made by the doctors.
37. It was urged that some of the doctors suffered from neck pain
etc. as such prayer ought to have been accepted but they have not
given any such serious ailments which may make their functioning in
the hospital difficult in any manner whatsoever. It was the pretext
that was used by them to seek voluntary retirement. It is for the
Government to consider the efficacy. Doctors too have right under the
Rights of Persons with Disabilities Act, 2016, they can continue in
services unfettered by such ailments.
38. Under Article 47 it is the duty of the State to improve the public
health, which is a primary duty under the Directive Principles of the
State Policy and the statutory expression which may be enforced.
When we consider Article 51A containing Fundamental Duties, it is a
duty of every citizen under Article 51A(g) to have compassion for living
creatures and to have humanism is also contemplated under Article
51A(h) and to strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher levels of
endeavours and achievement. It cannot be done by depriving poorest
of the poor essential medical services and to leave them at the mercy
of doctors. There cannot be an exodus from the Government Medical
Services at large, which is being projected in the instant case,
38
definitely this cannot be permitted to happen within four corners of
law as it has to be living organism and has to live up to the essence
and spirit of constitution and cannot ignore and overlook needs of
poorest strata of the society.
39. It was urged that the State Government is discriminating
between the doctors in the Provincial Medical Services with the
doctors working in the Stateowned Hospitals and Medical Colleges.
In the Medical Colleges etc. doctors are being permitted to retire.
Instances of 7 doctors have been given, who were permitted to retire in
2016, 2017 and 2018. Doctors of Medical Colleges are on a different
footing than that of Provincial Medical Services. Even otherwise in
view of the scarcity of the doctors, no ground of equality can be
claimed and the doctors of different services form different class, apart
from that there is no concept of negative equality that too against the
public interest. In case, such a plea is allowed, none may be left to
serve public at large.
40. There are several decisions of the High Court, namely, Dr. Anil
Dewan vs. State of Punjab, ILR 1 Punjab & Haryana 46; State of
Punjab vs. Dr. Harbir Singh Dhillon , 2010 SCC Online P&H 6159 and
Dr. Kalpana Singh vs. State of Rajasthan, (2014) SCC Online Raj 6253,
were cited to show that the decision in Dinesh Chandra Sangma
(supra) had been followed. We have considered the aforesaid decisions
39
and we find that it would depend upon the scheme of the Rules. Each
and every judgment has to be considered in the light of the provisions
which came up for consideration and question it has decided,
language employed in the rules, and it cannot be said to be of general
application as already observed by this Court in State of Haryana
(supra).
41. It was also contended that the State of Uttar Pradesh may
amend rules, in our opinion there is no such necessity in view of the
Explanation the State has already amended its rules so as to enable it
to pass an order with respect to retirement whether it is at the
instance of the Government or at the instance of the employee for both
the public interest is germane.
42. The submission was also made with respect to the imposition of
moratorium period of one year on retirement and that there should be
the recruitment of the doctors and thereafter acceptance of voluntary
retirement by the State. We do not propose to venture into it. The
action of the State Government was appropriate in disallowing the
prayer seeking voluntary retirement. The Government may fill the
vacancies if any. But that would not bring doctors of experience at
senior level and exodus of doctors cannot be permitted to weaken the
services when the public interest requires to serve for the sake of
efficient medical profession and fulfil Directive Principles of State
40
Policy once they found statutory expression in the rules cannot be
made mockery. When services are required, denial of voluntary
retirement is permissible under the Rules applicable in the State of
Uttar Pradesh.
43. In view of the above, we allow the civil appeals and hereby set
aside the impugned judgment and order passed by the High Court.
The applications for intervention and to implead stand allowed.
…………………………..J.
(Arun Mishra)
…………………………..J.
(S. Abdul Nazeer)
August 21, 2018.
New Delhi.