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2006 DIGILAW 182 (HP)

A. K. ARORA v. STATE OF HIMACHAL PRADESH

2006-06-27

NARINDER SINGH THAKUR, VIJAY PAL SINGH

body2006
JUDGEMENT Narinder Thakur, Vice- Chairman.: In the present GA the applicant has mainly sought for the following two reliefs: "a) quash the impugned action of the respondents whereby they have not issued the necessary notification of retirement of the applicant and paid all the due and admissible terminal and pensionary benefits, the impugned action being arbitrary, malafide and illegal. b) directed the respondents to issue necessary notification with respect to retirement of the applicant and pay to the applicant all the dues and admissible terminal and pensionary benefits alongwith interest @ 18% per annum from the due date till the date of payment of the dues:- 2. The applicant alleges to be aggrieved by the impugned action of the respondents whereby he has not paid retirement and terminal benefits till date despite the fact that the applicant has relinquished the office w.e.f. 1.8.2005 after having given three months notice on 2.5.2005 for premature retirement. It is also stated that the respondent department has issued notification of retirement in respect of all other similar situated doctors and also released their outstanding dues and the applicant is being discriminated arbitrarily and illegally. 3. The case of the applicant is that he joined service in the H.P. Health Services on 31.5.1980 at the age of 27 years as G.D.O. On.2.5.2005, the applicant has given three months notice for premature retirement owing to the circumstances stated in the said representation. The said representation was further forwarded by the office of Chief Medical Officer, Solan, on 7.5.2005 (A-2. It was categorically stated in the said letter that there is no vigilance/ legal inquiry pending against the applicant. The said representation was further forwarded by the Director of Health Services on 28.5.2005 to the respondent for favour of further necessary action. 4. On 1.8!2005 (A-3), On completion of 90 days, the applicant relinquished his charge and submitted the information thereof to all the concerned. The said office order with respect to relinquishing of the charge was submitted by the applicant from Reckong, where the applicant joined his duties on 8.7.2005 after being transferred. 5. 4. On 1.8!2005 (A-3), On completion of 90 days, the applicant relinquished his charge and submitted the information thereof to all the concerned. The said office order with respect to relinquishing of the charge was submitted by the applicant from Reckong, where the applicant joined his duties on 8.7.2005 after being transferred. 5. The applicant bonafide and legitimately believed and expected that after relinquishing of charge by the applicant on completion of stipulated statutory period of 90 days from the date of issue of notice for retirement, the respondent department will complete all the codal formalities expeditiously for release of all the terminal and pensionary benefits to the applicant so as to avoid financially hardship to the applicant but nothing was heard. The applicant again made a representation to the respondents on 26.8.2005 vide Annexure-A/4 through a registered post to issue retirement notification of the applicant and as a result release retiral benefits due an admissible as per rules. But nothing has been heard from the respondents till date. 6. Further case of the applicant that he himself is suffering from SERO-ve-Spondylo- Arthropath. The applicant remained himself admit owing to his illness earlier and at present also the said problem is persisting. Apart from it, the wife of the applicant is also suffering from certain grave health problem. The mother of the applicant is about 81 years old is under going treatment at Agra and likewise the father of the applicant who is 84 years old is also under going treatment for serious ailment (A-5). In this back ground, coupled with other unavoidable circumstances, the applicant tendered his premature resignation to the respondent department. At present applicant is facing grave financial hardship due to non-payment of terminal and pensionary benefits to the applicant as too old age parents of the applicant are bed-ridden and they require regular treatment and medication and two children of the applicant are studying in different high classes and there is no other source of sufficient income available with the applicant. It is averred that the terminal pensionary benefits which have occurred in favour for the applicant are his property right in accordance with the Article 300-A of the Constitution of India and same cannot be withheld by the respondent department in this manner illegally and arbitrarily. 7. It is averred that the terminal pensionary benefits which have occurred in favour for the applicant are his property right in accordance with the Article 300-A of the Constitution of India and same cannot be withheld by the respondent department in this manner illegally and arbitrarily. 7. Further case of the applicant is that as per the details (Anne-A/6) of all other similarly situated doctors in whose case respondent department has sanctioned this charge and issue necessary notification arid completed all the codal formalities within the stipulated period. The applicant alone has been discriminated in this regard. 8. It is further averred that when the applicant applied for premature retirement the applicant has attained the age of 52 years and completed 25 years of service. As such the premature retirement notice given by the applicant was in accordance with the rules governing the subject matter and the applicant is entitled for all the terminal and pensionary benefits. In any event the notice of voluntary retirement of the applicant is not subject to acceptance by the respondents. 9. In the counter filed by respondent department it has been averred that the applicant submitted three months notice on 2.5.2005 seeking voluntary retirement. The request of the applicant could not be considered due to the fact that there is a shortage of specialist in the Pradesh. Further it submitted that the applicant was transferred from Regional Hospital Solan to Regional Hospital Reckong Peo (Kinnaur) in the month of March, 2005. To avoid the joining at Regional Hospital Reckong Peo the applicant submitted three months notice for voluntary retirement on 2.5.2005. Accordingly, the Director of Health services vide letter dated 7.7.2005 was informed that the request of the applicant for seeking voluntary retirement from the Govt service was considered and same was rejected. The copy of the said letter was endorsed to Chief Medical Officer, Solan with a request to direct Dr. A.K. Arora at join his duties at Regional Hospital, Reckong Peo within a weeks time positively failing which disciplinary proceedings will be initiated against him. It is further submitted that the Chref Medical Officer, Solan has informed the applicant verbally that the request for seeking voluntary retirement has already been rejected by the competent authority, therefore, the applicant was directed to report for his duty at Regional Hospital Reckong Peo. It is further submitted that the Chref Medical Officer, Solan has informed the applicant verbally that the request for seeking voluntary retirement has already been rejected by the competent authority, therefore, the applicant was directed to report for his duty at Regional Hospital Reckong Peo. The applicant has joined his duties at Regional Hospital Peo on 8 7.2005 and relinquished the charge of post at his own on 1.8.2005. It is further submitted that mere completion of 20 years of service or forty five years of age does not entitle for voluntary retirement from service. Thus the applicant has violated all norms, laid down in the prescribed procedure in this context. In support of. these averments, the relevant provision of the relevant rules contained in Hand Book. On Personnel Matters Vol-2 2nd Ed., vide appendix 24-F are reproduced by the respondent in their reply as under- "For existing provision below sub rule (2) of rule 3 of the Himachal Pradesh (Premature retirement) Rules 1976 hereinafter called " the said rules" the proviso below sub Rule (2) of Rule 3, shall be substituted as under-Provided that any Govt, servant which satisfactory service record may after giving notice of not less then three months in writing to the appropriate authority retire from service on completion of 20 years of service or 45 years of age after such notice has been accepted by the appropriate authority." 10. It is further averred .that as would be seen from A-3 the applicant has issued the office order at his own and directed Dr. Raj Kumar Daroch, ENT Surgeon to look after the work of Chief Medical Officer office till the Chief Medical Officer, (Dr. Priya Malhotra) resume her duty at Reckong Peo. This act on the part of the applicant is unbecoming of a Govt, servant and therefore, he is liable for of the applicant is unbecoming of a Govt, servant and therefore, he is liable for disciplinary proceedings under the provisions of relevant rule. It is further stated that the applicant could not have relinquished the charge at his own in the absence of Chief Medical Officer, Reckong Peo. 11. The averments made in the reply have been met with by the applicant in his rejoinder. It is further stated that the applicant could not have relinquished the charge at his own in the absence of Chief Medical Officer, Reckong Peo. 11. The averments made in the reply have been met with by the applicant in his rejoinder. He has stated that the provision coated in the reply is being wrongly applied as the same is applicable to the incumbents with 45 years of age or 20 years of service, whereas the applicant on the date of submission of the application for voluntary retirement 52 years old with 25 years service and in this factual background the acceptance of notice is not required. It is further stated that in pursuance to the transfer of the applicant to Reckong Peo the applicant has joined there on 8.7.2005 (F.N.) It is further stated that the applicant was on medical leave w.e.f. 7.5.2005 to 5.7.2005 and in the meantime the applicant was relieved in-absentia from Solan on 7.5.2005. After being declared fit to join, the applicant proceeded to join duty at Reckong Peo and reached at Rampur on 6.7.2005. The applicant could not be proceed further to Reckong Peo due to road block and was A 12. It is stated that Dr. Raj Kumar Daroch, was the senior most doctor hence he was asked to look after the work of Chief Medical Officer, Reckong Peo till the Chief Medical Officer resume her duty. The Chief Medical Officer herself as asked Dr. Raj Kumar Daroch to look after the work of Chief Medical Officer vide 1110-12 dated 23.7.2005 prior to the proceeding on her leave w.e.f. 25.7.2005 to 30.7.2005. Chief Medical Officer, was expected to come back on 31.7.2005 one Jay prior to the relinquishing the charge by the applicant but she did not join her duty from her leave till 31 7.2005 as such no act of the applicant is unbecoming of Govt. servant and no disciplinary action can be taken against the applicant. 13. We have heard the learned counsel for the applicant and the learned Additional Advocate General for the respondents and have perused the pleadings and record very carefully. servant and no disciplinary action can be taken against the applicant. 13. We have heard the learned counsel for the applicant and the learned Additional Advocate General for the respondents and have perused the pleadings and record very carefully. The moot point of the controversy requiring our adjudication is that whether the premature retirement notice of three months tendered by the applicant on 2.5.2005 was subject to acceptance or rejection by the competent authority or not and whether on expiry of three months period on 1.8.2005, the applicant was well within his rights to relinquish his charge. In this respect it will be profitable to refer to the provision of relevant rules governing the matter. In this respect we have been taken through Chapter 24 of Hand Book on Personnel Matter Vol.2. The Rules known as HP. Civil Service (Pre-mature retirement) Rules, 1976 as amended from time to time are contained in at page 716 onwards. The relevant portion of Rule 3 governing the matter made as under:- "PREMATURE RETIREMENT 3(1) xxxxx 2. Any Govt employee may, after giving atleast three months previous notice in writing to the appropriate authority retire from service on the date on which he:- a) Complete 30 years of qualifying service; or b) Attained the age of:- i) 50 years in respect of Class-I and Class-ll Officers who have entered Govt. service before attaining the age of 35 years. ii) 55 years in case of all other Class-I and Class-ll officer and all the class-Ill employees; and iii) 55 years in case, of such Class-IV employees who entered Govt. service after 23rd July, 1966. . Provided that any Govt. servant with satisfactory service record may, after giving notice of not less than three months in writing to the appropriate authority, retired from service on completion of 20 years of service or 45 years of age after such notice has been accepted by the appropriate authority. 14. From the foregoing provisions it is amply evident that where a Class-I and Class-ll Officer have either completed 50 years of age and has entered Govt. service before attaining the age of 35 years, or has completed 30 years of qualifying service, shall retire on completion of three months of notice. Admittedly, in the present case the applicant has joined service in the respondent department at the age of 27 years and has completed 52 years of age. service before attaining the age of 35 years, or has completed 30 years of qualifying service, shall retire on completion of three months of notice. Admittedly, in the present case the applicant has joined service in the respondent department at the age of 27 years and has completed 52 years of age. As such acceptance of notice was not a condition sine qua non in his of notice is required only in case of a person who has completed 20 years of service or 45 years of age. As such the plea of respondents deserve to be rejected out-rightly and the respondent has certainly try to apply wrong provision in the case of the applicant. It leaves no manner of doubt in our mind that the grounds put forth by the respondent for not accepting the premature retirement notice of the applicant is untenable and more so in the fact of the rule position as explained herein, the respondent has no say either to accept or reject the said notice of voluntary and premature retirement and same is to be take effect in accordance with the provisions of Rules automatically on expiry of stipulated period. The proviso being relied upon by the respondents is merely an exception to the general rules and is applicable in the case of person covered under the proviso, which certainly is not the case of the applicant. The point is issue 0also stand already adjudicated by the Principal Bench on this Tribunal on 1.5.2006 in OA No. 2876/2005 titled as Dr. Hardesh Kumar Sharma vs. State of H.P. In that case the admitted facts were that the applicant was appointed on 19.6.1975 when he was less than 35 years of age. He served.......of premature retirement on completion of 30 years and eight months of service and had considered 50 years of age. His request was also declined on the grounds of acute shortage of the Doctors in the State. The Principal Bench while referring to the rules in the provisions of law allowed the Original Application of the applicant. 16. In the regard the Honble Apex Court in case of Major S.K. Jain Vs. Union of India reported in 2000 (3) SCT 760 has held that voluntary retirement from service cannot be rejected on the grounds of shortage of officer on that rank. In Dr. 16. In the regard the Honble Apex Court in case of Major S.K. Jain Vs. Union of India reported in 2000 (3) SCT 760 has held that voluntary retirement from service cannot be rejected on the grounds of shortage of officer on that rank. In Dr. Ashok Kumar vs. Patna University reported in 1988 (4) SCT 792 it has been held that denial of benefit of voluntary retirement to one while granting same to the other is discriminatory, illegal and liable to be quashed. In Usmarn Khan vs. State of Rajasthan reported in 1992 (3) SCT 412 it has been held that the retirement become affected on the date of expiry of notice. The State of Haryana vs. S.K. Singhal reported in 1999 (2) SCT 678 it has been held that if the acceptance of notice is not prerequisite the employee deem to have been held that if the acceptance of notice is not prerequisite the employee deem to have automatically retire on the expiry of notice period. In Tulsi Sharma vs. State reported in 1995 (4) SCT 630 it has been held that notice of voluntary retirement unless some order is received before the expiry of notice period, presumption of acceptance of notice arises in terms and voluntary retirement shall be effected in terms of the notice. Some what similar view has been taken by the Honble High Court of H.P. in CWP 184/2005 titled as Nika Ram vs. State of H.P and others decided on 24.10.2005. 17. IN the light of above discussion and the rule position and the law laid down by the Honble Apex Court of India and this Tribunal we have no option except to allow the present Original Application in terms of the relief as prayed to, by the applicant in he Original Application. As a result the applicant shall be deem to have retired on 1.8.2005 and as consequences of our holding so, he shall be entitled to all the consequential benefits. This order will be complied with within two months from today, failing which the applicant shall be entitled for interest of 9% per annum on all outstanding dues from the date till the payment of the same. With these observations the Original Application sands finally disposed of with no order as to costs.