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2014 DIGILAW 2139 (RAJ)

Dr. Kalpana Singh v. The State of Rajasthan

2014-12-16

NIRMALJIT KAUR

body2014
JUDGMENT 1. - The prayer in the present petition is to consider the petitioner as voluntarily retired from service with effect from 3.7.2014 i.e. after the expiry of 3 months from the last notice sent by her on 2.4.2014. 2. The facts in short are that the petitioner was appointed as Medical Officer vide order dated 11.9.1991 on urgent temporary basis. While in service, she succeeded in competitive examination conducted by Rajasthan Public Service Commission and was, accordingly, appointed vide order dated 25.2.1992 at Primary Health Centre, Kujed, District Baran. The petitioner completed Post Graduation by availing the necessary leave. She completed the said course in the year 2003. At that point of time, she gave an undertaking that she will serve the State for a period of 5 years. The period stood completed by the petitioner in the year 2008. Thus, there was no hindrance in seeking the voluntary retirement by the petitioner. She completed the qualifying service of 15 years in the year 2006. The petitioner thereafter submitted an application seeking voluntary retirement from service vide her application dated 17.11.2012 w.e.f. 1.3.2013 on the ground of her family circumstances and stating therein that in view of the same, she is unable to discharge her duties with complete dedication. She was duly communicated by the Additional Director, Medical & Health Services, Government of Rajasthan, Jaipur vide letter dated 1.2.2013 that her letter seeking voluntary retirement had been duly forwarded. When no decision of the Government was conveyed to the petitioner, she wrote a letter dated 9.5.2013 through proper channel to the Director, Medical & health Services, Government of Rajasthan, Jaipur while endorsing a copy of her representation to the Superintendent, Ummed Hospital, Jodhpur that in case, there is anything lacking in her application dated 17.11.2012, she may be apprised of the same. When the said representation of the petitioner yielded no result, she once again on 11.11.2013 requested for grant of voluntary retirement w.e.f. 15.12.2013 as till date no order had been communicated to her. Thereafter, the petitioner wrote still another letter on 20.12.2013 reiterating her earlier request. On 27.2.2013, in response to her application dated 20.12.2013, the Additional Director, Medical & Health Services sent a letter dated 10.1.2014 that her application for voluntary retirement has been rejected vide letter dated 27.2.2013. Thereafter, the petitioner wrote still another letter on 20.12.2013 reiterating her earlier request. On 27.2.2013, in response to her application dated 20.12.2013, the Additional Director, Medical & Health Services sent a letter dated 10.1.2014 that her application for voluntary retirement has been rejected vide letter dated 27.2.2013. In fact, the petitioner once again represented through her application dated 28.2.2014 to allow her to take voluntary retirement from service as she wanted to contest the Parliamentary Elections. This time, her application was rejected vide order dated 21.3.2014 on the ground that there was acute shortage of doctors and outdoor facilities are to be provided under the Free Medical Aid Scheme. The petitioner made yet another representation on 2.4.2014 under Rule 50(1) of the Rajasthan Civil Services (Pension Rules), 1996, this time seeking voluntary retirement w.e.f. 3.7.2014. However, the same was rejected once again vide order dated 28.5.2014 stating that she should not ask for voluntary retirement and may not submit any fresh application in this regard to the Directorate henceforth. Reliance was placed on the judgment rendered by the learned Single Judge of this Court in the case of Dr. Duresh Narayan Mathur v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 4121/2012), decided on 11.09.2012 , 3. Reply has been filed by the respondents. As per the reply, the first application of the petitioner seeking voluntary retirement was rejected within time on 27.2.2014; and that the said decision of the State Government was communicated to her vide letter dated 10.1.2014 (Annx.10). It is further submitted that the State Government have all the right to reject the application for voluntary retirement in the interest of public at large. Reliance was placed on the judgment rendered by this Court in the case of Dr. Mahaveer Prasad Sharma v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 4411/2014), dated 16th July, 2014 , wherein it is held that the reason assigned for the rejection of an application for voluntary retirement on the ground of shortage of doctor is just and proper.The parties were heard at length.From the above, the following facts emerge:- (i) The petitioner had filed her application seeking voluntary retirement on 17.11.2012 . (ii) Allegedly, the decision of the State Government was not received by the petitioner till 9.5.2013, which was stated by her in her letter dated 9.5.2013 to the Director, Medical & Health Services. (ii) Allegedly, the decision of the State Government was not received by the petitioner till 9.5.2013, which was stated by her in her letter dated 9.5.2013 to the Director, Medical & Health Services. (iii) The fact was denied by the respondents who submitted in the communication dated 27.2.2013 that the same was sent to Ummed Hospital, Dholpur where the petitioner never worked. (iv) Even, her second application dated 28.2.2014 seeking voluntary retirement that she wanted to contest the Parliamentary Elections was turned down on the same ground of shortage of doctors. (v) The third request made on 2.4.2014, too, was turned down for similar reasons. 4. Learned counsel for the petitioner has raised twofold arguments: firstly, the letter dated 27.2.2013 was not received by the petitioner. Hence, she was deemed to have been retired from service after lapse of three months from the date of her application; and secondly, that the petitioner fulfills all the requirements as laid in Rule 50 of the Rajasthan Civil Services (Pension Rules), 1996. As per Rule 50 of the Rules of 1996, the shortage of doctors cannot be a ground for refusing voluntary retirement. 5. In order to adjudicate the matter, it is necessary to refer to Rule 50 of the Rules of 1996, which read as under:- "50. Retirement on completion of 15 years qualifying Service: (1) At any time after a Government servant has completed fifteen years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. (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 automatically become effective from the date of expiry of the said period. Government of Rajasthan Decision Guidelines for acceptance of notice. - A notice of voluntary retirement given after completion of "fifteen years" qualifying service will require acceptance by the appointing authority. Government of Rajasthan Decision Guidelines for acceptance of notice. - A notice of voluntary retirement given after completion of "fifteen years" qualifying service will require acceptance by the appointing authority. Such acceptance may be generally given in all cases except that the Appointing Authority shall withhold permission to retire a Government servant: (i) who is under suspension; (ii) in whose case the disciplinary proceedings are pending or contemplated for the imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case, is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service; (iii) in whose case prosecution is contemplated or may have been launched in a court of law. In such cases, if it is proposed to accept the notice of voluntary retirement approval of the Government should be obtained. Even where the notice of voluntary retirement given by the Government servant requires acceptance by the appointing authority, the Government servant giving notice may presume acceptance and the retirement shall be effective in terms of the notice unless the competent authority issues an order to the contrary before the expiry of the period of notice. (3) (a) A Government servant referred to in sub rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons thereof; (b) On receipt of a request under clause (a), the appointing authority subject to the provisions of sub rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months." 6. A perusal of the above Rules reveal that a Government servant whoever has completed fifteen years qualifying service may give a notice of not less than three months in writing and in case of such notice, acceptance of Appointing Authority would be required only if the appointing authority does not wish to grant the permission for retirement before the period specified in the notice. In that eventuality, retirement becomes effective automatically on the expiry of the said period. 7. In that eventuality, retirement becomes effective automatically on the expiry of the said period. 7. In the facts of the present case, since there is a dispute with respect to the rejection order dated 27.2.2014 having been received by the petitioner, this Court does not deem it proper to go into the same in its jurisdiction under Article 226 of the Constitution of India. Although, this Court is of the opinion that in case, rejection order had been received by the petitioner, there was no occasion for her to send number of reminders and there was nothing to stop her from sending the subsequent applications as she did after she came to know that the same stood rejected. 8. However, there is merit in the second argument of learned counsel for the petitioner that the application for voluntary retirement could be rejected only on limited grounds as spelled out in Rule 50 of the Rules of 1996. There was no hindrance in accepting the petitioner's application for voluntary retirement. The application of the petitioner was rejected on the ground of shortage of doctors. The State has placed on reliance on the judgment rendered by this Court in the case of Dr. Mahaveer Prasad Sharma v. State of Rajasthan & Ors. (supra) to contend that the same was a valid ground for rejection of the VRS application. On the other hand, learned counsel for the petitioner has relied on the judgment rendered by the learned Single Judge of this Court in the case of Dr. Duresh Narayan Mathur v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.4121/2012), decided on 11.09.2012 , wherein, in similar circumstance, the petitioner who was a lady, was allowed to be voluntary retire in spite of the similar objection of the non-availability of Medical Officers. Normally, this Court may have referred the matter to a Division Bench but it appears that the first judgment dated 11.09.2012 passed in S.B. Civil Writ Petition No. 4121/2012 (Dr. Duresh Narayan Mathur v. State of Rajasthan & Ors.) was not brought to the notice of the learned Single Judge dealing with the case of Dr. Mahaveer Prasad Sharma (supra). The case of Dr. Duresh narayan Mathur was given at a prior point of time. 9. The Apex Court in the case of State of Haryana & Ors. Duresh Narayan Mathur v. State of Rajasthan & Ors.) was not brought to the notice of the learned Single Judge dealing with the case of Dr. Mahaveer Prasad Sharma (supra). The case of Dr. Duresh narayan Mathur was given at a prior point of time. 9. The Apex Court in the case of State of Haryana & Ors. v. S.K. Singhal, reported in AIR 1999 SC 1829 while discussing the provisions as applicable in the facts of the said case dismissed the appeal of the State challenging the order of the High Court allowing voluntary retirement holding that the voluntary retirement was conferred in absolute terms by the relevant rules and there was no provision in the rules to withhold permission in certain contingency except as provided in the said rules. In that case, the crucial question that arose was whether the allegation that the respondent was not attending the duties after notice was relevant and could be a valid ground for refusing the permit for voluntary retirement coming into force under Rule 5.32(b) of the Punjab Civil Service Rules. The Apex Court while considering the various judgments including the case of Dinesh Chandra Sangma v. State of Assam & Ors., reported in (1977) 4 SCC 441 observed in para 13 as under:- "Thus, form the aforesaid three decisions it is clear that if the right to voluntarily retirement is conferred in absolute terms as in Dinesh Chandra Sangma's case (supra) by the relevant rules and there is no provision in Rules to withhold permission in certain contingencies the voluntary retirement comes into effect automatically on the expiry of the period specified in the notice. " 10. The judgment rendered by the Hon'ble Supreme Court in the case of Dinesh Chandra Sangma v. State of Assam & Ors., reported in (1977) 4 SCC 441 while considering whether Rule 119 of the Defence and Internal Security of India Rules, 1971 is superimposed on F.R. 56(c) of the Fundamental Rules, which was a provision of voluntary retirement observed that the High Court committed an error of law in holding that consent of the Government is necessary to give legal effect to the voluntary retirement. It was observed that since the condition of F.R. 56(c) are fulfilled, he is deemed to have voluntary retired as notified by the appellant. It was observed that since the condition of F.R. 56(c) are fulfilled, he is deemed to have voluntary retired as notified by the appellant. While allowing the appeal, the Apex Court held as under:- "The rubric of rule 119 of DISI Rules is "essential services". Indeed this rule occupies a place in Part XII of the DISI Rules with the title "Essential Supplies and Work". Sub-rule (1) of rule 119 applies to three broad categories of employment, namely, (1) employment under the Central Government, (2) employment under the State Governments and (3) employments declared by the Central and State Governments as essential. The third category may include even private employments which may be declared to be essential for the purpose of securing the objects specified in sub-rule (1) of. rule 119. It may be sufficient, here, to refer to the notification of the Control Government S.O. 206(E) dated March 25, 1974 whereby "any employment under the Hindustan Construction Company Limited in the Haldia Dock Project" was declared by the Central Government an essential employment for the purpose of rule 119. It is because of the above mentioned third category of employment that Explanation 2 was considered necessary so as to extend the meaning of abandonment of employment by including the persons who by the terms of their contract could terminate their employment by notice. It goes without saying that in many employments, whether of private limited companies or public companies, contracts of employment are executed containing a terms or termination of employment by notice. Such cases of contractual employment are different from those of Government employees whose employment is a matter of status and not of ordinary contract. The conditions of service of a Government servant are regulated by statute or statutory rules made under Article 309 of the Constitution. This Court observed in Roshan Lal v. Union of India (1) as follows : "It is true that the origin of Government service is Contractual. There is an offer and acceptance in every case, But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. In other words, the legal position of a Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties." The Apex Court further went on to hold: "......Since F. R. 56 is a statutory condition of service, which operates in law, without reference to a contract of employment, there is nothing inconsistent between rule 119 and F.R. 56. The appellant has voluntarily retired by three months' notice, not in accordance with an express or implied term of his contract of employment, but in pursuance of a statutory rule. Explanation 2 to rule 119 makes no mention of retirement under a statutory rule and hence the same is clearly out of the way. The submission that rule 119 is super-imposed on F.R. 56 has no force in this case. The High Court committed an error on law in holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F.R. 56. (c). Since the conditions of F.R. 56(c) are fulfilled in the instant case, the appellant must be hold to have lawfully retired as notified by him with effect from 2nd August, 1976." 11. In the present case, the petitioner is entitled to voluntary retirement under Rule 50 of the Rajasthan Civil Services (Pension Rules), 1996. The said rules are statutory rules. Moreover, the Rule 50 of the Rules of 1996 contemplates "a notice to retire" and not "a request seeking permission to retire". The request contemplated in Rule 50 of the Rules of 1996 is only in case an employee is seeking waiver of the notice period. The petitioner who is a Government servant, is governed by the terms and conditions of service framed by the State Government. They leave no scope with the State to withhold the permission except on the three grounds mentioned therein i.e. in case, the petitioner is under suspension; disciplinary proceedings are pending or contemplated for the imposition of major penalty; or whose prosecution is contemplated or launched in a Court of Law. The Statute must be read in its entirety for the purpose of finding out the intention and object thereof. 12. The Statute must be read in its entirety for the purpose of finding out the intention and object thereof. 12. Yet again in M/s. Grasim Industries Ltd. v. Collector of Customs Bombay, JT (2002) 3 SC 551 , the Apex Court held as under:- "No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the means or sententia legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to take upon itself the task of amending or altering the statutory provisions." 13. Thus, the rule in the present case is absolute except for the three exceptions mentioned above. There was nothing to stop the Government from including the clause "public interest or "any other reason", in case, they had any intention or object behind refusing the voluntary retirement either in the interest of the public or otherwise. Thus, the petitioner was not suffering from any of the disqualification incorporated in the Rule 50 of the Rules of 1996 making her ineligible from seeking voluntary retirement. No such provision or exception in the Rules has been brought to the notice of this Court, which may enable this Court to come to the conclusion that the State could reject the application on any other reasons except as mentioned in the rules. In the absence of any such provision permitting the State to refuse voluntary retirement on the ground of public interest or any other valid reason, the Government is equally bound by the rules and other terms and condition of the service binding the parties. 14. In this view of the matter, the present petition is allowed. In the absence of any such provision permitting the State to refuse voluntary retirement on the ground of public interest or any other valid reason, the Government is equally bound by the rules and other terms and condition of the service binding the parties. 14. In this view of the matter, the present petition is allowed. The petitioner shall be deemed to have retired from service w.e.f. 3.7.2014 i.e. after the expiry of 3 months from the last notice sent by her on 2.4.2014Petition allowed. *******