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2010 DIGILAW 3557 (MAD)

K. Meena v. State of T. N.

2010-08-16

V.RAMASUBRAMANIAN

body2010
O r d e r:-The petitioner has come up with this writ petition challenging the orders by which her request for voluntary retirement was rejected. 2. I have heard Mr.R.Muthukumaraswamy, learned Senior Counsel appearing for the petitioner. Mr.K.H.Ravikumar, learned Government Advocate for the respondents. 3. The petitioner was originally selected and appointed as Assistant Surgeon on 29.4.1988 in the Tamil Nadu Medical Services. At that time, she had the qualifications of M.B.B.S., and D.G.O. Subsequently she was selected as a service candidate, for admission to the Post Graduate Medical Course in M.D. (O&G) and she completed the same in the year 1993. After completion of the Post Graduate Degree, the petitioner was appointed as a Tutor in the Kilpauk Medical College. Later she was promoted as Assistant Professor in which post she continued. 4. The petitioner completed 20 years of service in April 2008 and also completed 50 years of age on 2.9.2008. Thereupon she served a notice dated 2.9.2008 on the respondents, seeking to proceed on voluntary retirement, after the expiry of the notice period of 3 months and seeking to be relieved with effect from 10.12.2008. According to the petitioner, the notice for voluntary retirement dated 2.9.2008 was served on and acknowledged by the respondents on 8.9.2008. 5. The petitioner went on medical leave from 5.11.2008. When she was on leave, she was relieved by an order dated 15.11.2008 from the Government Peripheral Hospital, Anna Nagar and transferred to Kilpauk Medical College. Accepting the said order, the petitioner joined duty at Kilpauk Medical College on 20.11.2008. 6. It is the case of the petitioner that till 10.12.2008, the date indicated by her in her notice for voluntary retirement, no order rejecting her request was served on her. Therefore, the petitioner stopped attending duties with effect from 11.12.2008, taking refuge under Rule 56(3)(f) of the Fundamental Rules. 7. But on 20.1.2009, the petitioner was served with an order of the second respondent dated 24.11.2008, enclosing a copy of the Government letter dated 17.11.2008, rejecting her request for voluntary retirement on the ground that she belonged to the scarce category and that her continuation is essential in public interest. Therefore, challenging the Government letter dated 17.11.2008 and the covering letter of the second respondent dated 24.11.2008, the petitioner has come up with the above writ petition. 8. Therefore, challenging the Government letter dated 17.11.2008 and the covering letter of the second respondent dated 24.11.2008, the petitioner has come up with the above writ petition. 8. Mr.R.Muthukumaraswamy, learned Senior Counsel for the petitioner assailed the impugned orders on two grounds viz., (i) that the impugned order does not satisfy the second limb of the new proviso inserted to Fundamental Rule 56(3)(f); and (ii) that the Government letter dated 17.11.2008 was actually sent to the correct address of the petitioner only after 10.12.2008 and hence the petitioner is entitled to the benefit of the deeming fiction under FR 56(3)(f). 9. In order to test the validity of the aforesaid contentions, it is necessary to have a look at FR 56(3)(f), as it stood before amendment. It reads as follows:- "(f) The appointing authority shall issue orders before the date of expiry of notice either accepting the voluntary retirement or not. Otherwise, the Government Servant shall be deemed to have been retired voluntarily from service at the end of the period of notice: Provided that where a Government Servant under suspension or against whom disciplinary or criminal action is pending, seeks to retire voluntarily, specific orders of the appointing authority for such voluntary retirement is necessary. The appointing authority may withhold the permission sought for by the Government Servant, if any of the conditions specified in clause (e) are not satisfied." 10. However, by G.O.Ms.No.179, P&AR Department, dated 29.9.2008, the following proviso was inserted under FR 56(3)(f):- "Provided further that the appointing authority may also withhold the permission for Voluntary Retirement sought for by a Government Servant, if the post held by him has been declared as "Scarce Category" by the Administration Department concerned in Secretariat and whose continuation in Government Service is absolutely essential in public interest." 11. By G.O.Ms.No.315, Health and Family Welfare Department, dated 31.8.2007, the Government declared that all specialities in Tamil Nadu Medical Service are scarce categories. Consequently, even resignations of Doctors in specialities are not accepted by the Government. It is in this background that the request for voluntary retirement of the petitioner has been rejected. 12. The first contention of the learned Senior Counsel for the petitioner is that two conditions are to be satisfied, as per the new proviso inserted under FR 56(3)(f). Consequently, even resignations of Doctors in specialities are not accepted by the Government. It is in this background that the request for voluntary retirement of the petitioner has been rejected. 12. The first contention of the learned Senior Counsel for the petitioner is that two conditions are to be satisfied, as per the new proviso inserted under FR 56(3)(f). They are (i) that the post held by the person should have been declared as a scarce category and (ii) that the continuation of the person in Government Service should be absolutely essential in public interest. The petitioner does not dispute the fact that the post held by her has been declared as a scarce category by virtue of the Government Order cited above. But it is the contention of the learned Senior Counsel for the petitioner that the Government letter dated 17.11.2008 does not specifically spell out as to how the continuation of the services of the petitioner was found by the Government as absolutely essential in public interest. Therefore, according to the learned Senior Counsel for the petitioner, the impugned letter does not stand the test of the second limb of the proviso under FR 56(3)(f). 13. However, I am unable to accept the said contention for the reason that the impugned Government letter dated 17.11.2008 does, in fact, specify that the continuation of the petitioner in service was absolutely essential in public interest. I do not think that the Government is obliged, while passing orders under FR 56(3)(f), to provide elaborate details. It is only in cases covered by the first proviso viz., cases where the request for voluntary retirement is rejected on the ground of pendency of disciplinary proceedings or criminal prosecution, that the Government may have to provide details of such cases in the order of rejection. But in cases of this nature, where the Government had declared all the categories of Doctors in specialities as scarce categories, it is not necessary for the Government to explain as to how and why the retention of the petitioner is absolutely essential in public interest. 14. One cannot overlook the object behind the amendment to FR 56(3) (f). For admission to Post Graduate Medical Courses in the State of Tamil Nadu, a quota of 50% is reserved for in-service candidates. 14. One cannot overlook the object behind the amendment to FR 56(3) (f). For admission to Post Graduate Medical Courses in the State of Tamil Nadu, a quota of 50% is reserved for in-service candidates. After the increase in the number of self-financing Medical Colleges and Medical Universities, it was realised by the Government that the entry into Government Service was actually used as a stepping stone to get into Post Graduate Medical Courses and that thereafter there was an exodus of the creamy layer to those institutions. Therefore, the Government thought fit to amend FR 56(3)(f) and also declare Doctors in specialities as scarce categories. Doctors with a mere Under Graduate Degree in Medicine, are not declared as scarce categories. It is only the Doctors in specialities, who are declared as scarce categories. Therefore, the statement made in the impugned Government letter dated 17.11.2008 to the effect that the retention of the petitioner was absolutely essential in public interest is sufficient to satisfy the requirement of the proviso. The absence of elaborate details would not vitiate the order as one without application of mind. Hence the first contention of the petitioner is rejected. 15. The second contention of the learned Senior Counsel for the petitioner is that the impugned letter of the Government dated 17.11.2008 rejecting the request of the petitioner for voluntary retirement was actually served on her only on 20.1.2009. But by then, the date of expiry of the notice period viz., 10.12.2008 had already passed. Consequently, the second limb of clause (f) viz., the Government Servant shall be deemed to have retired voluntarily at the end of the period of notice, had come into operation. Since the deeming fiction came into operation by 10.12.2008, without the impugned letter of the Government being communicated to the petitioner, it is the contention of the learned Senior Counsel for the petitioner that the petitioner is deemed to have retired voluntarily. 16. In support of the aforesaid contention, the learned Senior Counsel for the petitioner drew my attention to certain dates, about which there is no controversy. They are as follows:- 05.11.2008 Petitioner working as Assistant Professor in Government Peripheral Hospital, Anna Nagar, proceeded on Medical Leave. 15.11.2008 Petitioner was relieved and transferred to Kilpauk Medical College. 17.11.2008 The date on which the Government passed the order of rejection. They are as follows:- 05.11.2008 Petitioner working as Assistant Professor in Government Peripheral Hospital, Anna Nagar, proceeded on Medical Leave. 15.11.2008 Petitioner was relieved and transferred to Kilpauk Medical College. 17.11.2008 The date on which the Government passed the order of rejection. The order was addressed to the petitioner describing her as Civil Surgeon, Government Peripheral Hospital, Anna Nagar and was sent through the Director of Medical Education. 20.11.2008 Petitioner joined at Kilpauk Medical College. 24.11.2008 Proceedings of the Director of Medical Education, addressed to the petitioner, describing her as Civil Surgeon, Government Peripheral Hospital, Anna Nagar, enclosing the Government letter dated 17.11.2008. 01.12.2008 The actual date on which the Director of Medical Education signed the proceedings dated 24.11.2008. 08.12.2008 The date on which the Government Peripheral Hospital, Anna Nagar forwarded the letter of the DME dated 24.11.2008 and the letter of the Government dated 17.11.2008 to the petitioner, through the Dean of the Kilpauk Medical College. 10.12.2008 Petitioner stopped attending College, on the ground that the deeming provision had come into operation. 29.12.2008 The endorsement on the letter of the DME dated 24.11.2008 directing the communication to be sent to the petitioner's residential address. 17. On the basis of the above dates and events, about which the respondents have no dispute, it is contended by the learned Senior Counsel for the petitioner that unless the respondents had made at least an attempt to communicate the impugned letter dated 17.11.2008, on or before 10.12.2008, the coming into operation of the deeming provision cannot be thwarted. Since the letter of the Government dated 17.11.2008 was forwarded by the letter of the DME dated 24.11.2008 to the wrong place viz., Government Peripheral Hospital, Anna Nagar, the learned Senior Counsel contended that the respondents cannot take umbrage under the fact that they had done everything within their control to communicate the order. 18. The learned Senior Counsel fairly conceded that if the letter dated 24.11.2008 had been sent to the correct address (either residential or official) of the petitioner on or before 10.12.2008, a presumption would arise in favour of the respondents about the "communication". Since the letter was addressed to a wrong place, where it was stuck till 8.12.2008 and also since it was sent thereafter to the residential address only on 29.12.2008, the respondents are not entitled to the benefit of the presumption. 19. Since the letter was addressed to a wrong place, where it was stuck till 8.12.2008 and also since it was sent thereafter to the residential address only on 29.12.2008, the respondents are not entitled to the benefit of the presumption. 19. In support of the above contention, the learned Senior Counsel relied upon the decision of the Apex Court in Union of India vs. S.P.Singh { 2008 (5) SCC 438 }. In the said case, an Officer of the Indian Revenue Service sought voluntary retirement with effect from 1.9.2005 by serving an application dated 10.5.2005. By an order dated 30.8.2005, he was placed under suspension and by another order dated 31.8.2005, his request for voluntary retirement was rejected. Both orders were served on him on 9.9.2005. These orders were successfully challenged by the Officer, both before the Central Administrative Tribunal and before the High Court. While dismissing the appeal of the Union of India, the Supreme Court quoted with approval the ratio laid down in State of Punjab vs. Khemi Ram { 1969 (3) SCC 28 }, as to what amounted to "communication". Since the orders were despatched to a wrong address, the Supreme Court held that though the despatch was made before 1.9.2005 (date of coming into effect of the voluntary retirement), the same would not amount to "communication". 20. But, in my considered view, the above decision may not go to the rescue of the petitioner, since it arose out of an interpretation to Rule 48(1)(a) of the Central Civil Services (Pension) Rules, 1972. Under the Second Proviso to the said Rule, the appointing authority has only a limited discretion to withhold permission for a Government Servant to retire voluntarily after completion of 30 years of qualifying service, only when such Government Servant is under suspension. It is Rule 48A of the said Rules, which governs voluntary retirement upon completion of 20 years of qualifying service. Even Rule 48(1) and 48A of the C.C.S. (Pension) Rules, are not in pari materia between themselves. While a request for voluntary retirement under Rule 48(1), after completion of 30 years of qualifying service, does not require acceptance by the appointing authority, a request for voluntary retirement under Rule 48A after completion of 20 years of qualifying service, requires acceptance by virtue of Rule 48A(2). 21. While a request for voluntary retirement under Rule 48(1), after completion of 30 years of qualifying service, does not require acceptance by the appointing authority, a request for voluntary retirement under Rule 48A after completion of 20 years of qualifying service, requires acceptance by virtue of Rule 48A(2). 21. Rule 48(1) of the C.C.S. (Pension) Rules, is not in pari materia with Rule 56 (3)(f) of the Fundamental Rules of the State of Tamil Nadu. Under clause (f) of sub-rule (3) of FR 56, the emphasis is on "issue of orders" and not on "communication". Clause (f) merely requires the appointing authority "to issue orders before the date of expiry of notice". It does not use the word "communication". Therefore, the decision of the Apex Court arising out of an interpretation to the word "communication", may not go to the rescue of the petitioner. 22. The Law Lexicon of P.Ramanatha Iyer states that the word "issued" means "entitled or sent forth". It also expounds the meaning of the word, as follows:- "As a noun, the act of sending or causing to go forth; a moving out of any enclosed place; egress; the act of passing out; exit; egress or passage out; exit; egress or passage out (Worcester Dict.); the ultimate result or end. To give or send out authoritatively or officially. "To issue" means to send out, to send out officially; to send forth; to put forth; to deliver, for use, or unauthoritatively: to put into circulation; to emit; to go out (Burrill); to go forth as a authoritative or binding, to proceed or arise from; to proceed as from a source (Century Dict.)". 23. In Delhi Development Authority vs. H.C.Khurana { 1993 (3) SCC 196 }, the expression "charge sheet has been issued" fell for consideration before the Supreme Court. After rejecting the argument that the word "issued" was used as synonymous to the word "served", the Supreme Court held in para 14 of its decision as follows:- "Issue of the charge sheet in the context of a decision taken to initiate disciplinary proceedings must mean, as it does, the framing of the charge sheet and taking of the necessary action to despatch the charge sheet to the employee to inform him of the charges framed against him, requiring his explanation; and not also the further fact of service of the charge sheet on the employee. It is so, because knowledge to the employee of the charges framed against him, on the basis of the decision taken to initiate disciplinary proceedings, does not form part of the decision making process of the authorities to initiate the disciplinary proceedings, even if framing the charges forms part of that process in certain situations." 24. Again in para 15, the Supreme Court held as follows:- "The meaning of the word 'issued', on which considerable stress was laid by learned counsel for the respondent, has to be gathered from the context in which it is used. Meaning of the word 'issue', given in the shorter Oxford English Dictionary include: 'to give exit to; to send forth, or allow to pass out; to let out; ...... to give or send out authoritatively or officially; to send forth or deal out formally or publicly; to emit, put into circulation'. The issue of a charge sheet therefore means its despatch to the Government Servant and this act is complete the moment steps are taken for the purpose, by framing the charge sheet and despatching it to the Government Servant, the further fact of its actual service on the Government Servant not being a necessary part of its requirement." 25. In Chintamani Gajanan Velkar vs. State of Maharashtra { 2000 (3) SCC 143 }, the Supreme Court followed the ratio in CIT vs. Bababhai Pitamberdas (Huf) {1993 Supp. (3) SCC 530} and held that the word "issue" has to be construed in the context in which it is used in the statute. 26. When a similar question arose in the context of Section 34 of the Income Tax Act and Section 4 of the Amending Act, the Supreme Court noted in Banarsi Debi vs. ITO { AIR 1964 SC 1742 } that at times the Courts have equated the expression "issued" with the expression "served". The Court also pointed out that the expressions "issued" and "served" are used as interchangeable terms both in dictionaries and in other statutes. Referring to Section 27 of the General Clauses Act, 1897, the Court pointed out that Parliament used the words "serve", "give" and "send" as interchangeable words. But the Court also pointed out that the expression "issued" is used sometimes in a limited sense and sometimes in a wider sense. Referring to Section 27 of the General Clauses Act, 1897, the Court pointed out that Parliament used the words "serve", "give" and "send" as interchangeable words. But the Court also pointed out that the expression "issued" is used sometimes in a limited sense and sometimes in a wider sense. Hence, the Court concluded that the expression "issued" should be given a meaning that would carry out the intention of the legislature, in preference to that which defeats it. 27. Though the decision in Banarsi Debi was followed in Commissioner of Wealth Tax vs. Kundan Behari Lal { 1975 (4) SCC 844 }, it was distinguished later by the Supreme Court in R.K.Upadhyaya vs. Shanabhai P. Patel { 1987 (3) SCC 96 } on the ground that under the 1961 Act (Income Tax Act), a clear distinction was made out between "issue of notice" and "service of notice". 28. Therefore, it is clear that the meaning to be assigned to the expression "issue" in FR 56(3)(f), has to be gathered only from the context in which the same is used and the interpretation to be given to the same should promote the object, rather than defeat it. 29. If we look at the case on hand, keeping in mind the above principles, it is seen that admittedly, the appointing authority "issued orders" on 17.11.2008, rejecting the request of the petitioner for voluntary retirement. Therefore, the requirement of the rule stood satisfied. Hence, the fact that it was sent to the wrong address before 10.12.2008 and to the right address only thereafter, may not advance the cause of the petitioner. The expression "the appointing authority shall issue orders" appearing in FR 56(3)(f) refers to the decision making process of the appointing authority, which would not include within its purview, the actual service of such decision on the Government Servant concerned. 30. In view of the above, I am unable to agree with both the contentions of the learned Senior Counsel for the petitioner. Hence the writ petition is dismissed. There will be no order as to costs.