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2003 DIGILAW 1753 (ALL)

SURENDRA SINGH BABA v. STATE OF U P

2003-08-06

A.K.YOG, UMESHWAR PANDEY

body2003
Dr. Surendra Singh Baba, petitioner, before us, was selected by U. P. Public Service Commission and appointed as Medical Officer in Provincial Medical Service Cadre in the State of U. P. on 15th February, 1974 and at that time he was posted at Primary Health Centre, Khairpur. 2. Petitioner happens to be a bachelor. While posted in the year 1990 at Chilla, District Mirzapur, he submitted application dated 28-11-1990, addressed to Director General, Medical, Health and Family Welfare U. P. , Lucknow (Annexure-2 to the Writ Petition) urging that he was eligible for being granted voluntary retirement under Fundamental Rule 56 (c) of Financial Hand Book Vol. II, Parts II to IV and he be granted the same w. e. f. March 1,1991. Petitioner remained on Medical leave from 28-11-1990 to 28- 2-1991. 3. The Chief Medical Officer forwarded said application to the Director General Medical, Health and Family Welfare, U. P. Since petitioner was given no information about acceptance and granting of voluntary retirement, he reported for joining duties on 5-3- 1991 (Annexure-3 to the Writ Petition ). The then Chief Medical Officer, Mirzapur vide letter dated 6-3-1991 (Annexure-4 to the Writ Petition), addressed to the petitioner, informed that the petitioner could not be allowed to join duties since his application for seeking voluntary retirement (already forwarded to the Director General Medical, Health and Family Welfare, U. P.) was pending decision. 4. Petitioner thereafter sent reminders dated 5-10-1991 and 24-7- 1992 to the Director General Medical, Health and Family Welfare, U. P. (Annexures-5 and 6 to the Writ Petition ). Respondent took no decision on the said representations and petitioner was given no information either way. 5. Being aggrieved, and as advised at that stage, petitioner filed Claim Petition No. 1133 of 1994, Dr. Surendra Singh Baba v. State of U. P. and others, before U. P. State Public Services Tribunal, Lucknow (U. P.) under Section 4 of U. P. Public Services (Tribunals) Act, 1976 for declaring impugned order dated 13-8-1993 (Annexure-7 to the Writ Petition) to be null and void, to declare him to have deemed voluntarily retired with effect from 5-3-1991 and to pay his entire pensionary benefits along with interest at the rate of 24% per annum. The Tribunal by means of judgment and order dated 23-4-1998 dismissed the claim petition. 6. The Tribunal by means of judgment and order dated 23-4-1998 dismissed the claim petition. 6. Petitioner, thereafter submitted another application addressed to the State Government of U. P. , through Principal Secretary, Medical and Health, Lucknow (Annexure-9 to the Writ Petition) praying for considering his request for voluntary retirement on the basis of earlier application w. e. f. 1-3-1991 as requested by him in the past. It is alleged in the petition that he sent several reminders through concerned In-charge Medical Officer, who vide order 3-11-1998 (Annexure-12 to the Writ Petition), informed the petitioner that his application for seeking voluntary retirement has been forwarded on 30- 7-1998 and petitioner should contact concerned Chief Medical Officer, Mirzapur. Petitioner complains that no heed was paid to his request for granting voluntary retirement w. e. f. 1-3-1991 and, on the other hand, he has also not been allowed to join his duties and denied salary. 7. Being aggrieved in the circumstances enumerated above, petitioner has filed present Writ Petition and claimed following reliefs : " (A) to issue a suitable writ, order or direction in the nature of mandamus commanding the respondents either to voluntary retire the petitioner w. e. f. 1-3-1991 with payments of all retiral benefits as rules together with interest @ 18% on arrears OR to allow the petitioner to join his service and issue his posting order with full arrears of back wages with interest and other promotional and other service benefits accrued since 1- 3-1991. (AA) To issue a suitable writ, order or direction in the nature of certiorari to quash the Tribunals order dated 23-4- 1998 (Annexure-8 to the Writ Petition ). (B) To award costs of the petition to the petitioner against the Respondents. (C) To award such other or further relief as may be deemed fit and proper in the facts and circumstances of the case. " 8. At the outset we would like to point out that the impugned order dated 23-4-1998 (Annexure-8 to the Writ Petition) suffers from manifest error apparent on the face of record. It is manifestly clear that the Tribunal somehow completely overlooked undisputed fact on record, which is evident from the observation contained in the judgment of the Tribunal. " 8. At the outset we would like to point out that the impugned order dated 23-4-1998 (Annexure-8 to the Writ Petition) suffers from manifest error apparent on the face of record. It is manifestly clear that the Tribunal somehow completely overlooked undisputed fact on record, which is evident from the observation contained in the judgment of the Tribunal. Such observation is reproduced below : "this position is confirmed from perusal of Annexure No. 8 dated 13-8-1993 sent by the Director General to the petitioner, but despite that it appears that the petitioner did not make any fresh application addressed to the O. P. No. 1 i. e. State Government. . . . . " 9. It is to be noted that order dated 13-8-1993/annexure No. 8 to the claim petition and (referred in the judgment of the Tribunal is Annexure-7 to the present writ petition. The said order contained in the letter written by Director General Medical, Health and Family Welfare, U. P. addressed to the petitioner is with respect to the conditional resignation submitted at same stage by the petitioner. It has nothing to do with the petitioners application and his prayer for seeking voluntary retirement. 10. The Tribunal again observed : "the prayer for quashing of Annexure No. 3 dated 6-3- 1991 refusing the petitioner to resume his duties as he had sought voluntary retirement w. e. f. 1-3-1991 and the order dated 13-6-1993 (Annexure No. 8) intimating the petitioner that he had not addressed his application for voluntary retirement to the appointing authority and as such, that was not liable to be accepted and should apply for voluntary retirement through the C. M. O. , Mirzapur in three copies, but the petitioner did not comply with. " 11. By making above observation, the Tribunal failed to appreciate that order dated 13-8- 1993/annexure-7 of Writ Petition has no concern with or reference to the petitioners application for voluntary retirement. 12. At the time of presentation of petition, vide order dated 12th September, 2000 a Division Bench of this Court granted six weeks time to the Standing Counsel for filing counter- affidavit and further directed that pending further orders by this Court, the State Government shall take appropriate decision on the latest application dated 2-6-1998 (Annexure-9 to the Writ Petition) filed by the petitioner to seek voluntary retirement under the Rules. 13. 13. Respondents have chosen not to file counter-affidavit, hence the averments contained in the petition are unrebutted and have to be accepted. Learned Counsel for the petitioner also stated before us that State Government has taken no decision on the said application dated 2-6-1998 (Annexure-9 to the Writ Petition) in spite of interim mandamus granted by this Court. 14. Learned Standing Counsel has placed before us copies of the letter sent from the office of Chief Standing Counsel to the respondents to show that aforementioned letter was communicated to the authorities and they are aware of the pendency of the Writ Petition. Non-compliance of High Courts interim mandamus vide its order dated 12th September, 2000 cannot be overlooked. Failure on the part of the respondents on both the counts-vis. failure to decide the petitioners application submitted for voluntary retirement and failure to comply interim mandamus issued by the Court, shows callousness and serious lapse on the part of the respondents beside the consequence of flooding litigation in Courts. 15. Since respondents have chosen not to place their defence or contest the pleadings made on behalf of the petitioner before this Court, we feel justified in assuming that the State Government has no objection to the petitioners prayer for seeking voluntary retirement w. e. f. 1-3-1991. Till date there is no specific order of any of the competent authority raising objection on any score whatsoever in granting voluntary retirement to the petitioner. 16. The then Chief Medical Officer took up an wholly arbitrary stand of not allowing the petitioner to join his duties pending consideration of the application for voluntary retirement (reference be made to letter dated 6-3-1991-Annexure-4 to the Writ Petition ). Thus the petitioner was neither granted voluntary retirement nor allowed to discharge his duties inspite of his offering to resume duties and to render services. 17. We fail to appreciate the reasoning adopted by the Tribunal in its judgment that since application for seeking voluntary retirement dated 28-11-1990 (Annexure-2 to the Writ Petition) was addressed to the Director General Medical, Health and Family Welfare, U. P. it was liable to be rejected/ignored as it was not addressed to the appointing authority viz. the State Government. 18. We fail to appreciate the reasoning adopted by the Tribunal in its judgment that since application for seeking voluntary retirement dated 28-11-1990 (Annexure-2 to the Writ Petition) was addressed to the Director General Medical, Health and Family Welfare, U. P. it was liable to be rejected/ignored as it was not addressed to the appointing authority viz. the State Government. 18. How an application (for seeking voluntary retirement) could be rejected by the Director General Medical, Health and Family Welfare, U. P. , since on the own showing of the respondents, he was not competent to deal with or entertain the same. The Director General, Medical, Health and Family Welfare, U. P. at best could return back the application to the petitioner or forward it to the competent authority namely, State Government for needful to be done. Reasoning adopted by the Tribunal is per- se illegal, bad and misplaced. The Director General Medical Health neither returned the application nor forwarded it to the State Government and hence it shall be deemed that said application dated 28-11- 1990 (Annexure-2 to the Writ Petition) is still pending. 19. In view of the above, we are of the considered opinion that State Government and its official have acted arbitrarily in not passing appropriate orders on the application submitted by the petitioner promptly within reasonable time which has resulted into the harassment of the petitioner making him to run to claim before Public Service Tribunal and this Court. 20. In the result, we issue a writ in the nature of certiorari. , calling for record of the case and quash the impugned judgment and order dated 23-4-1998 passed State Public Service Tribunal in Claim Petition No. 1133 of 1994, Dr. Surendra Singh Baba v. State of U. P. and others, (Annexure-8 to the Writ Petition ). We further issue a writ in nature of mandamus commanding respondents (Respondent No. 1)/ State of U. P. through Principal Secretary, Department Health and Family Welfare Lucknow to pass requisite orders granting voluntary retirement w. e. f. 1-3-1991 in view of Fundamental Rule 56 (c) of Financial Hand Book Vol. II, Parts II to IV and as well as in accordance with law. II, Parts II to IV and as well as in accordance with law. We further direct that petitioner shall be entitled to his post retiral benefits as may be admissible to him in accordance with law alongwith 10% per annum simple interest from the date its due till the actual payment. It is further directed that petitioner shall file a certified copy of this judgment before the concerned authority within six weeks from today and do the needful whatever may be required for processing and passing actual order of retirement and/or payment of post retiral benefits and if certified copy of this judgment is filed, as submitted above, concerned respondents, its officer and other sub ordinate authorities shall ensure passing of requisite orders and also ensure to pay retiral benefits and arrears as indicated above, in accordance with law by passing adequate orders as may be required under law within eight weeks of the receipt of certified of copy of this order. 21. In view of the above, petition stands allowed. No order as to costs. Petition allowed. .