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Madhya Pradesh High Court · body

2014 DIGILAW 1508 (MP)

Amita Lunawat v. State of M. P.

2014-11-21

PRAKASH SHRIVASTAVA

body2014
ORDER 1. This writ petition has been filed by petitioner challenging the order dated 31.5.2014 whereby the petitioner's application for voluntary retirement has been rejected on the ground that there is deficiency of doctors in the department. 2. In brief, the case of petitioner is that she was inducted in Government service w.e.f. 30.4.1983 and she was working on the post of Lady Assistant Surgeon in the urban Family Welfare Center, Jinsi, Mangilal Churia Hospital, Indore (her last place of posting) and since she had completed more than 25 years of service, therefore, she had given the notice of voluntary retirement on 26.8.2013 in Form 28 in terms of rule 42 of MP Civil Services (Pension) Rules, 1976 which was duly forwarded by respondent No.2 to the competent authority by letter dated 30.8.2013. By the said notice she was to retire on 1.10.2013 but by the impugned order, the application has been rejected on the ground of shortage of doctors. 3. Respondents have filed reply stating that since there is deficiency of doctors in the department, therefore, the petitioner's request for voluntary retirement cannot be allowed and petitioner can make an application after regular doctors are appointed after selection by PSC. 4. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the issue involved in the present case is already settled by the earlier judgment of this Court. 5. The principal seat of this Court in the matter of Ruksana Begum Siddiqui (Smt.) v. State of Madhya Pradesh and others, reported in 2009(5) MPHT 74 taking note of the earlier judgment in the matter of Indra Prakash v. State of M.P., reported in 1985 JLJ 504 = 1985 MPWN 209 = 1985 MPLJ 229 has held that the notice of voluntary retirement given by a government servant under Rule 42(1)(a) of M.P. Civil Services (Pension) Rules, 1976 does not require any acceptance by the appointing authority and it is the unilateral act of the government servant and such notice comes into effect automatically on the expiry of the notice period. 6. This Court in the matter of Dr. Rajendra Bansal v. State of M.P. and others, vide order dated 14th October 2014 passed in Writ Petition No.4132/14 has decided the similar controversy where the application for voluntary retirement submitted by another doctor was rejected on the same ground. 6. This Court in the matter of Dr. Rajendra Bansal v. State of M.P. and others, vide order dated 14th October 2014 passed in Writ Petition No.4132/14 has decided the similar controversy where the application for voluntary retirement submitted by another doctor was rejected on the same ground. This Court taking note of rule 42 and the judgments in the matter of Indra Prakash (supra) and in the matter of Dr. Umesh Chandra Sharma v. State of M.P. (Writ Petition No.4382/2007) decided on 29.1.2007 has held as under :- “7. The aforesaid statutory provision of law permits a Government servant serving in the Public Health and Family Welfare Department to submit an application on completion of 20 years of qualifying service. The petitioner has completed more than 25 years of qualifying service. It is true that proviso to rule 42(1)(a) empowers the State Government to refuse the permission in the matter of grant of voluntary retirement, however the same can be refused in certain contingency i.e. in case a government servant is under suspension, in case the government servant is facing disciplinary action or disciplinary action is likely to be initiated. The petitioner's case does not fall in any of the clauses mentioned under the proviso. The respondents were not having any choice except to retire the petitioner voluntarily w.e.f. 26.10.2013. 8. This Court in the case of Indra Prakash (supra) has held as under:- “24. The first factor to be located and isolated for determination is the nature of the thing to which a Government servant like the petitioner-- is entitled under sub-clause (a)(3). First it is a right conferred by a statutory rule and as such its exercise by a Government cannot be defeated by the appointing authority of the said Government servant or any officer superior to the Government at its or his sweet will and on any consideration of grounds extraneous to the provisions of Clause (a). The right guaranteed under Clause (a) is indefeasible. Second the expression that a Government servant 'may retire at any time after completing 20 years qualifying service' shows that the election to retire is that of the Government servant alone not preconditioned by any extraneous factor inclusive of will or desire of any authority or superior officer of the Government servant. In short the election to retire is a subjective factor viz., the volition of the Government servant. In short the election to retire is a subjective factor viz., the volition of the Government servant. In short, it is an absolute right in the sense that the Government servant's election to retire cannot be questioned or that he cannot be called upon to account for or explain his motive or purpose of his decision to retire. 25. The aforementioned conclusion is reinforced by the proviso to Clause (a) in so far as even a Government servant under suspension is not precluded from electing to retire and to send a notice to his appointing authority under Clause (a). The requirement of obtaining the prior permission of the appointing authority is insisted upon by the proviso only after the Government servant's election to retire is formed and its exercise is manifested and communicated to the appointing authority in terms of Clause (a). The eventuality that the appointing authority may refuse to allow the Government servant under suspension to retire is clearly envisaged in the proviso, but that is in the nature of a statutory hiatus towards the fruition of an election in the volition of the Government servant and expressed and communicated to his appointing in terms of Clause (a) just as in the case of a Government servant not under suspension. 26. The conclusion that the right under Clause (a) is an absolute one receives yet another confirmation in sub-rule (2) of rule 42 which tells the Government servant in clear but ominous terms that his election to retire once exercised and then communicated to his appointing authority cannot be withdrawn by him subsequently. In effect such an election on the part of the Government to retire once expressed, and communicated to his appointing authority amounts to burning of his service boat by the Government servant concerned. Even the appointing authority had been given no power to check or delay, let alone call a halt to the inexorable legal consequence, viz. the retirement of the Government servant on a date specified by him in his notice. Unless the Government servant himself makes a request for withdrawal (of his notice of retirement) to the appointing authority then only the appointing authority has been given a power to permit withdrawal of the notice of retirement by giving specific approval to the said withdrawal on consideration of the circumstances of the case. 27. Unless the Government servant himself makes a request for withdrawal (of his notice of retirement) to the appointing authority then only the appointing authority has been given a power to permit withdrawal of the notice of retirement by giving specific approval to the said withdrawal on consideration of the circumstances of the case. 27. It is, therefore, such a statutory right, indefeasible and absolute in nature that is enshrined in Clause (a) of sub-rule (i) of rule 42 of the Civil Services (Pension) Rules, 1976.” 9. This Court in the case of Narayan Prasad v. The Honourable District and Sessions Judge, Ratlam in paragraphs 9 and 10 has held as under :- “9. A perusal of rule 42(1)(a) shows that no reasons are required to be given in the notice seeking voluntary retirement. It is the volition and choice of the Government servant to seek voluntary retirement after completing 20 years of service by giving three months notice. This notice comes into operation after the expiry of the period of three months automatically. The relationship of master and servant comes to an end on completion of the notice period by the unilateral act of the Government servant. Such a notice does not require any acceptance by the appointing authority. The volition act of the Government servant brings an end to the "binding knot". 10. The decision of this Court in Indra Prakash v. State of M.P. 1985 MPLJ 229 has taken the same view. It was held that a Government servant who has completed 20 years qualifying service has an absolute and indefeasible right to retire at any date of his choice. The notice of voluntary retirement does not require any order or acceptance by the appointing authority.” 10. A similar petition has also been decided by this Court in the case of Dr. Umesh Chandra Sharma (supra). 11. In light of the aforesaid judgments, the writ petition is allowed. The petitioner shall be deemed to be retired voluntarily w.e.f. 26.10.2013. The respondents are directed to finalise the terminal/pensionary dues within a period of three months and also to pay the arrears of other terminal/pensionary dues and regular pension by treating the petitioner as retired from service voluntarily w.e.f. 26.10.2013. The petitioner shall be deemed to be retired voluntarily w.e.f. 26.10.2013. The respondents are directed to finalise the terminal/pensionary dues within a period of three months and also to pay the arrears of other terminal/pensionary dues and regular pension by treating the petitioner as retired from service voluntarily w.e.f. 26.10.2013. The respondents shall release the actual payment also in favour of the petitioner within a period of three months from the date of receipt of a certified copy of this order. 12. With the aforesaid, the writ petition is allowed.” 7. Keeping in view the aforesaid aspect of the matter, I am of the opinion that the impugned order dated 31.5.2014 passed by respondents cannot be sustained and is hereby set aside. The petitioner shall be deemed to be retired w.e.f. the date mentioned in the application for voluntary retirement Annexure P-1. The respondents are directed to finalize the terminal/pensionary dues of the petitioner within a period of three months from the date of receipt of certified copy of this order and pay the same without any delay. The petitioner will be at liberty to approach this Court in case if any grievance survives after finalization of the terminal/pensionary dues. 8. The writ petition is accordingly disposed of. Ms. Ritu Bhargav for petitioner; Ms. V. Phaye for respondents/State.