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Madhya Pradesh High Court · body

2016 DIGILAW 148 (MP)

Beena Kumra v. State of M. P.

2016-02-23

ROHIT ARYA

body2016
ORDER 1. This writ petition under Article 226 of the Constitution of India is filed with the grievance that petitioner while serving as gynaecologist has applied for voluntary retirement vide application (Annexure P-1) dated 27.9.2013 under rule 42(1)(a) of the M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as the Rules of 1976) and in form No.28, the reason for seeking voluntary retirement was personal to her due to sufferings in her right eye and was therefore, unable to perform surgery of any kind. Despite, application so filed by her, respondents have not decided the same, as required under rule 42(1)(a) of the Rules of 1976 within one month, as a result, petitioner has approached this Court for the relief of the nature, that despite having fulfilled all the requirements for seeking voluntary retirement and more than one year period has passed by, respondents have not passed any order on her application for seeking voluntary retirement, or direction to respondents to treat the petitioner as having voluntary retired since 26.10.2013 and further direction to respondents to pay her retiral dues. 2. On notice, respondents have entered appearance and referred to the order dated 23.12.2014 (Annexure P-8) brought on record by the petitioner, whereby petitioner is given to understand that her application seeking voluntary retirement has been rejected by the competent authority. 3. Learned counsel for the petitioner contends that despite opportunity being afforded to respondents, till date no counter-affidavit has been filed. It is also submitted that the controversy involved in this writ petition is to the following effect:- Whether the application dated 27.9.2013 (Annexure P-1) filed by the petitioner under rule 42(1) (a) of the Rules of 1976 after completion of 20 years of qualifying service seeking voluntary retirement from the post of gynaecologist can be rejected by communication dated 23.12.2014 (Annexure P-8) in absence of disqualification incurred by the petitioner, as provided for under third proviso to rule 42(1)(a) of the Rules of 1976, which reads as under :- 42. Retirement on completion of (20/25 years) qualifying service- (1)(a) Government servant may retire at any time after completing 20 years qualifying service, by giving a notice in form 28 to the appointing authority at least one month before the date on which he wishes to retire or on payment by him of pay and allowance for the period of one month or for the period by which the notice actually given by him falls short of one month : Provided that this sub-rule shall not apply to the Government servants mentioned in brackets against each of the following Departments, until they have not completed 25 years qualifying service :- (a) Public Health and Family Welfare Department (Medical, Paramedical and Technical Staff); (b) Medical Education Department (Teaching Staff, Paramedical and Technical staff); (c) Technical Education and Man Power Planning Department (Teaching staff); (d) Higher Education Department (Teaching staff); (e) School Education Department (Teaching staff); (f) Tribal Welfare Department (Teaching staff); (g) Home (Police) Department (None-Ministerial staff): Provided further that such Government servant shall not be allowed to retire from service without prior permission in writing of the appointing authority under the following circumstance:- (I) Where the Government servant is under suspension ; (ii) Where it is under consideration of the appointing authority to institute disciplinary action against the Government Servant : Provided also that if the appointing authority has not taken the decision under clause (ii) of the second proviso, within six months from the date of notice given by the Government servant with regard to such disciplinary action it shall be deemed that the appointing authority has allowed to such Government servant to retire from service on the date after expiry of the period of six months. (b) the appointing authority may in the public interest require a Government servant to retire from service at any time after he has completed 20 years qualifying service or he attains the age of 50 years whichever is earlier with the approval of the State Government by giving him three months notice in Form 29: Provided that such Government servant may be retired forthwith and on such retirement forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing immediately before his retirement or, for the period by which such notice falls short of three months, as the case may be.” (Emphasis supplied) and whether the application seeking voluntary retirement deemed to be automatically accepted after lapse of 1 month from the date of submission of the application dated 27.9.2013 ? 4. It is contended that the aforesaid questions have been answered by a Division Bench of this Court in Writ Appeal No.272/2014 (State of M.P. and others v. Dr. Harendra Jaseja) decided on 7.10.2014 arising out of order passed by this Court in Writ Petition No.952/2014(s) (Dr. Harendra Jaseja v. State of M.P. and others) decided on 15.5.2014, wherein, it is held that once the petitioner has not suffered disqualification as provided for under third proviso to rule 42(1)(a) of the Rules 1976, the application is deemed to have been accepted after expiry of 1 month from the date of filing of the application. The aforesaid orders are on record as Annexure P-9. It is submitted that the order passed by Division Bench of this Court has attained finality, as the SLP arising therefrom has been dismissed. This position is not controverted by the counsel for the respondent/State. 5. Accordingly, in the opinion of this Court, the order dated 23.12.2014 (Annexure P-8) rejecting the petitioner's application seeking voluntary retirement is hereby quashed and petitioner is deemed to have been retired w.e.f. 27.10.2013 i.e. after expiry of 1 month from the date of filing of the application. Respondents are directed to release the pension and pensionary dues to the petitioner without any further loss of time, immediately on production of certified copy of the order passed today. With the aforesaid observation and direction, writ petition stands allowed and disposed of.