JUDGMENT Hon'ble Devi Prasad Singh, J.—The petitioner, a member of Provincial Medical and Health Services, has preferred the instant writ petition feeling aggrieved with an order dated 3.5.2010 passed under Article 311 (2) read with Article 311 (3) of Constitution of India by the State Government dismissing her from service. The impugned order has been passed collectively against 42 Medical Officers with approval of the U.P. Public Service Commission. The petitioner’s name stands at serial No. 8 of the impugned order. The order reveals that the State Government took a decision to terminate services of 435 Medical Officers who are alleged to be absence from duty since long period and their whereabouts are not known to the department. 2. According to petitioner’s counsel, while working in District Hospital Ballia, the petitioner suffered with fatal accident on 5.1.2008 and in consequence thereof, her right leg was nailed causing physical infirmity to some extent. On account of physical disability to discharge duty and personal problem, the petitioner submitted an application dated 6.10.2008 for voluntary retirement under Fundamental Rule 56 of Financial Hand Book. Three months notice was given opting voluntary retirement from 7.1.2009 (expiry of three months statutory period). 3. With intention to avail medical assistance, the petitioner undergone medical leave on 12.10.2008 and remained on leave upto 6.1.2009. Thereafter, joined duty on 7.1.2009 in afternoon. 4. On 7.1.2009 after lapse of statutory period of three months, under Fundamental Rule 56 of Financial Handbook, she relinquished her Office and informed the authorities concerned. It appears that respondents have not communicated their decision in response to notice dated 6.10.2008 with regard to voluntary retirement within stipulated period of three months. Hence she preferred Writ Petition No. 138 (S/B) of 2009 in this Court with the prayer that her application for voluntary retirement should be considered and decision be taken thereon within specified period. 5. While filing counter-affidavit in the aforesaid writ petition, State took a stand that a disciplinary proceeding is pending against the petitioner hence, no decision could have been taken under Fundamental Rule 56 of Financial Hand Book with regard to petitioner’s voluntary retirement. 5. While filing counter-affidavit in the aforesaid writ petition, State took a stand that a disciplinary proceeding is pending against the petitioner hence, no decision could have been taken under Fundamental Rule 56 of Financial Hand Book with regard to petitioner’s voluntary retirement. After hearing parties counsel, the Division bench keeping in view the averments contained in the counter-affidavit filed by the State Government, finally decided the writ petition (supra) by the judgment and order dated 21.10.2009 (Annexure 1) directing the State Government to conclude disciplinary proceeding expeditiously preferably, within a period of four months and thereafter, take a decision on petitioner’s application for voluntary retirement. According to petitioner’s counsel, copy of judgment and order dated 21.10.2009 (supra) was served on State Government on 9.11.2009. The judgment and order dated 21.10.2009 (supra), is reproduced as under : “Hon’ble Devi Prasad Singh,J. Hon’ble Anil Kumar,J. Petitioner is a Medical Officer and had moved an application for voluntary retirement on 6.10.2008. Since no decision was taken by the respondents present writ petition has been preferred. In counter-affidavit, it is submitted by the learned counsel for the respondents that disciplinary inquiry is pending against the petitioner and charge-sheet was served in the month of February, 2009. Keeping in view the facts and circumstances of the case, we direct the respondents to conclude the disciplinary proceeding, expeditiously and preferably, within a period of four months from the date of receipt of a certified copy of this order. However, after conclusion of disciplinary proceeding, the respondents shall consider and take decision with regard to application for voluntary retirement in accordance with law. Subject to above, writ petition is disposed of finally. Order Date : 21.10.2009 “ 6. The investigating officer submitted report on 18.11.2008. In consequence thereof, a show-cause notice alongwith a copy of the inquiry report was served on 3.12.2009. Vide, reply dated 15.1.2010, the petitioner denied finding recorded by the inquiry officer. After considering petitioner’s reply, the Government took a decision to punish the petitioner with stoppage of two annual increments temporarily for the period of two years and by a letter dated 12.3.2010 (Annexure 3 to the writ petition) sent its decision for approval to the U.P. Public Service Commission. 7. After considering petitioner’s reply, the Government took a decision to punish the petitioner with stoppage of two annual increments temporarily for the period of two years and by a letter dated 12.3.2010 (Annexure 3 to the writ petition) sent its decision for approval to the U.P. Public Service Commission. 7. It appears that since U.P. Public Service Commission had not sent its approval within reasonable period the State Government sent reminder dated 7.4.2010 (Annexure 4 to the writ petition) to the Secretary U.P. Public Service Commission to accord approval to the proposal sent to punish the petitioner on 12.3.2010. The U.P. Public Service Commission granted approval, vide its letter dated 26.7.2010 for imposition of punishment with regard to stoppage of two increments for a period of two years (Annexure 6 to the writ petition). The approval granted by the U.P. Public Service Commission dated 26.7.2010 in its totality is reproduced as under : ÞLihM iksLV Þla[;k 472@84@,Mhlh@,l&8@ 2009&2010 Ás"kd] vej ukFk mik/;k;] mi lfpo] yksd ls vk;ksx] M0á0 bykgkcknA lsok esa] lfpo] mŸkj Áns'k 'kklu] fpfdRlk vuqHkkx&11] y[kuÅA bykgkckn] fnukad 26 tqykbZ] 2010 fo"k; % Mk0 lq/kk flag] ijke'kZnkrk] ftyk efgyk fpfdRlky;] cfy;k ds fo:) Álrkfor n.M ds lEcU/k esaA ------------------------- egksn;] mi;qDr fo"k;d 'kklu ds i= la[;k 655@ikap&11&2010&e ¼310½@2008] fnukad 12-3-2010 ds lanHkZ esa eq>s ;g dgus dk funsZ'k gqvk Gs fd ek0 vk;ksx }kjk Ádj.k ij Le;d~ fopkjksijkUr 'kklu }kjk Álrkfor n.M ij bl la'kks/ku ds lkFk lgefr Ánku dh tkrh Gs fd vipkjh vf/kdkjh dks Þnks okf"kZd osru o`f);ka vLFkkbZ :I ls nks o"Kz ds fy, jksdrs gq, ifjfuUnk fd;s tkusÞ dk n.M fn;k tkuk lehphu gksxkA 2- Ádj.k esa Ásf"kr vfHkys[k ,r}kjk layxz djds bl vk'k; ls okil fd;s tkrs gSa fd mDr ijke'kkZuqlkj vipkjh vf/kdkjh dks tkjh n.Mkns'k dh Áfr ek0 vk;ksx ds voyksdukFkZ v/kksgLrk{kjh dks miyC/k djkus dk d"V djsaA Hkonh;] layxz % viBuh; ¼vej ukFk mik/;k;½ mi lfpoAÞ 8. It appears that irrespective of the approval granted by the U.P. Public Service Commission to punish the petitioner with stoppage of 2 increments, by the impugned office memo dated 3.5.2010, petitioner’s services have been dismissed without disciplinary inquiry in pursuance of power conferred by Article 311 (2) (3) of the Constitution. 9. While filing counter-affidavit, State has not disputed that the U.P. Public Service Commission had accorded approval to award punishment in the manner referred to hereinabove, on 26.7.2010 (para 6 of the counter-affidavit). 9. While filing counter-affidavit, State has not disputed that the U.P. Public Service Commission had accorded approval to award punishment in the manner referred to hereinabove, on 26.7.2010 (para 6 of the counter-affidavit). A defence has been set up by the State that opportunity to 42 Women Medical Officers was given to resume duty within ten days by publication in the news paper on 22.7.2009 but since they did not turn up, the impugned order was passed invoking Article 311 (3) of the Constitution. The ground set up in the counter-affidavit is unauthorised absence from duty. For convenience, paras 9 and 11 of the counter-affidavit is reproduced as under : “9. That due opportunity has been afforded to her for resuming her services but she continued to remain absent from the duties unauthorisedly. 11. That the termination of the petitioner from her services is just and reasonable as she failed to join at her place of posting despite of the publication of notice on 22.7.2009 in various newspapers and continued to remain unauthorisedly absent from her duties and as a consequence of which her services have been terminated in accordance with law and there is no illegality or infirmity on part of the opposite parties in terminating the petitioner from service.” 10. While filing counter-affidavit, State Government has not denied with regard to inquiry report submitted by the inquiry officer, reply submitted by the petitioner in response to show-cause notice and decision taken by the State Government to punish the petitioner with stoppage of two increment and approval accorded thereon by the U.P. Public Service Commission. It shall be appropriate to reproduce para 13 of the counter-affidavit filed by the State Government which is as under : “13. Regarding Paragraph Nos. 2 and 3 : That in reply to the contents of these paragraphs, it is submitted that in compliance of the judgment and order dated 21.10.2009 passed by this Hon’ble Court in writ petition No. 138 (S/B) of 2009, the decision of the disciplinary proceedings initiated against the petitioner was sent to the Public Service Commission for its approval. But as the petitioner remained absent from her duties unauthorisedly, therefore, her services came to an end vide office memorandum dated 3.5.2010 and now no question arises for giving voluntary retirement to the petitioner.” 11. The counter-affidavit has been filed on the basis of personal knowledge. But as the petitioner remained absent from her duties unauthorisedly, therefore, her services came to an end vide office memorandum dated 3.5.2010 and now no question arises for giving voluntary retirement to the petitioner.” 11. The counter-affidavit has been filed on the basis of personal knowledge. The affidavit has been filed by Sri Sanjay Agarwal, Principal Secretary, Medical and Health Services. Since it has been sworn on the basis of personal knowledge, there appears to be no reason to disbelieve that the Principal Secretary was aware with regard to pendency of disciplinary proceeding and punishment proposed, approval granted by the U.P. Public Service Commission. 12. The Government itself sent its letter to U.P. Public Service Commission on 12.3.2010 for grant of approval to proposed punishment followed by reminder dated 7.4.2010. In such a situation, no man of common prudence will believe that the petitioner was unauthorisedly absent from duty and the Government was not aware with regard to pending disciplinary proceeding and the application moved by the petitioner for voluntary retirement. The factual position recorded in the impugned order dated 3.5.2010 while exercising power conferred by Article 311 (2) (3) of the Constitution at the face of record, seems to be not correct. The defence set up by the State that during the period when inquiry proceeding was going on, since the petitioner was absent from duty impugned order was passed, seems to be a cooked up case. FUNDAMENTAL RULE—56 13. Even if by office memo dated 26.12.2008 disciplinary proceeding was initiated against the petitioner and she submitted application for voluntary retirement on 7.1.2009 in ignorance of disciplinary proceeding or for any reason whatever, it was incumbent on the State Government to inform the petitioner in pursuance of the statutory mandate contained in Rule 56 of the Financial Hand Book, which seems to have not been done. The relevant portion of Rule 56 of Financial Hand Book of Chapter IX is reproduced as under : “© 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 [forty five years] or after he has completed qualifying service for twenty years. (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 any 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 his 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 © seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority.” 14. From the pleading on record, and argument advanced by the counsel, there appears to be no room of doubt that the State Government has not informed the petitioner in pursuance of statutory mandate required under the proviso (supra) that in view of disciplinary proceeding, the petitioner’s application for voluntary retirement has not been accepted before the expiry of notice. From the pleading on record, and argument advanced by the counsel, there appears to be no room of doubt that the State Government has not informed the petitioner in pursuance of statutory mandate required under the proviso (supra) that in view of disciplinary proceeding, the petitioner’s application for voluntary retirement has not been accepted before the expiry of notice. The petitioner came to know with regard to disciplinary proceeding through counter-affidavit filed in the writ petition. 15. In case a Government servant serves a notice under Rule 56 (supra) for voluntary retirement, it shall be incumbent on the Government to inform him in writing before the expiry of statutory period of three months in lieu of notice that the application has not been accepted for some reason including pendency of disciplinary proceeding. 16. In a case in B.J. Shelat v. State of Gujrat and others, 1978 (2) SCC 202 , their lordships of Hon’ble Supreme Court held that permission to retire an employee may be withheld by the appointing authority either when the Government servant is under suspension or against him departmental proceeding are pending or contemplated. Their lordship further held that actual knowledge by the Government servant of an order of dismissal becomes necessary because of consequence which the decision in the State of Punjab v. Amar Singh Harhar, contemplated but an order of suspension when once issued and sent out to the concerned Government servant must be held to have been communicated, no matter when he actually received it. Their lordships further held that it shall be incumbent on the State Government to communicate decision with regard to withholding of permission to retire, to quote relevant para-10 of the judgment in the case of B.J. Shelat (supra) : “10. … Under Fundamental Rule 56 (k) the Government servant is entitled.