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Himachal Pradesh High Court · body

2011 DIGILAW 691 (HP)

Nirdosh Bhushan v. State of H. P.

2011-02-26

SANJAY KAROL

body2011
JUDGMENT Sanjay Karol, J. Petitioner has prayed for the following reliefs:- (i) That the respondents may be directed to release the retirement benefits, like Pension, Gratuity, Leave-encashment, GIS etc. w.e.f. 6/7.9.2005 as per A-5 i.e. the date of relinquishment of post/job/duties on voluntary retirement, with all consequential benefits, forthwith. (ii) That the orders of rejection dated 5.10.2005 vide Annexure A-6 and order dated 21.3.2006 vide A-14 may kindly be quashed and set-aside. Whether reports of Local Papers may be allowed to see the judgment? (iii) That action of proposing departmental proceedings, as in A-6 and A-14 may be held to be malafide and thus unsustainable. 2. Annexure A-6 reads as under:- “I am directed to refer to your application dated 07.09.2005, on the subject cited above and to say that the case for seeking voluntary retirement was examined at the Govt. level and the same was rejected owing to some administrative reasons. Therefore, you are, directed to join the duties at the place of your posting i.e. CH Palampur, Distt. Kangra immediately failing which disciplinary proceedings will be initiated against you under the provisions of the relevant rules.” 3. Annexure A-14 reads as under:- “ORDER WHEREAS, Dr. Nirdosh Bhushan Gupta, Medical Officer filed an O.A. (D) 380/05 titled as Dr. Nirdosh Bhushan Gupta Vs. State of H.P. before the Hon’ble HPAT, challenging the rejection order of his voluntary retirement case on the ground that he is suffering from Cervical Spondlitus, Disc Prolapse, Recurrent Renal Stone and Hypertension. AND WHEREAS, the matter came before Hon’ble HPAT on 19.12.2005 and the Hon’ble Tribunal directed the Respondent to treat the application as representation and decide the same within a period of eight weeks. AND WHEREAS, in compliance of the orders so passed by the Hon’ble Tribunal, personal hearing was afforded to Dr. Nirdosh Bhushan Gupta on 9.2.2006 when the applicant did not turn up. AND WHEREAS, from the fact finding inquiry submitted by CMO Kangra reveals that the said Doctor was doing private practice and prescribing treatment in private clinic at Palampur which shows that he is medically fit and seeking voluntary retirement on false grounds. Now, THEREFORE, taking all aspects into consideration the request of Dr. AND WHEREAS, from the fact finding inquiry submitted by CMO Kangra reveals that the said Doctor was doing private practice and prescribing treatment in private clinic at Palampur which shows that he is medically fit and seeking voluntary retirement on false grounds. Now, THEREFORE, taking all aspects into consideration the request of Dr. Nirdosh Bhushan Gupta, MO to seek voluntary retirement is hereby rejected and he is directed to join his duties immediately at the place of his posting failing which action shall be taken against him under the Rules. By order Harinder Hira Principal Secretary (Health) to the Government Himachal Pradesh.” 4. Facts are not in dispute. Vide letter dated 6.6.2005(Annexure A-3) petitioner applied for his premature voluntary retirement. This request of his was turned down vide Annexure A-6 and that too after repeated reminders and expiry of three months. 5. According to the respondents petitioner was not eligible for the benefit of the acceptance of notice in accordance with the Himachal Pradesh Civil Services (Premature Retirement) Rules, 1976. Annexure A-6 does not assign any specific reason for rejection of the petitioner’s prayer. It only says that rejection is due to “some administrative reasons”. Be that as it may be, the fact of the matter is that the petitioner’s request had to be considered and decision taken thereupon within a period of three months from the receipt of Annexure A-3. In this regard provision of Rule 48 A(2) of the CCS (Pension) Rules are evidently clear. 6. The Apex court in Tek Chand versus Dile Ram,(2001) 3 SCC 290 has clearly held that:- “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 48-A 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: “48-A. Retirement on completion of 20 years’ qualifying service. During the course of the argument before the High Court, the learned counsel for the parties referred to Rule 48-A 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: “48-A. 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 sub-rule 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 Ministry of External Affairs and other aid programmes. (ii) posted abroad in foreign-based 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 sub-rule (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.” “32. Under sub-rule (1) of the said Rule, at any time after completion of 20 years’ qualifying service, a government servant could give notice of not less than three months’ in writing to the appointing authority for retirement from service. Under sub-rule (2), voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority. In the proviso to sub-rule (2) of Rule 48-A, it is clearly stated that in case the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the requirement shall become effective from the date of expiry of the said period.” 7. Even while dealing with the provisions of the H.P. Civil Services (Premature Retirement) Rules, 1976 the Division Bench of this Court in CWP(T) No. 14176/2008, titled as Dr. Even while dealing with the provisions of the H.P. Civil Services (Premature Retirement) Rules, 1976 the Division Bench of this Court in CWP(T) No. 14176/2008, titled as Dr. S.S. Negi versus State of H.P. and other connected matter, decided on 22.4.2010 has held that once an employee satisfies the conditions required for premature retirement, no formal order is required for the employee to retire from service. The Rule itself enables the employee to retire even without any formal order. If the retirement, for whatsoever reason is impermissible, the employee is to be intimated about the same during the period of service and that too on the grounds available under the Rules. Noticeably Annexure A-6 does not assign any reason. 8. Consequently the impugned orders dated 5.10.2005 (Annexure A-6) and 21.3.2006 (Annexure A-14) are quashed. As a consequence thereof petitioner is entitled to all consequential benefits. Necessary action be taken within a period of six months from the date of receipt of the certified copy of the judgment. Needless to add if the amount is not disbursed within the aforesaid period, then only thereafter, petitioner shall be entitled to interest on the amounts due and admissible, if any, @ 6% per annum. Petition stands disposed of accordingly.