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Madhya Pradesh High Court · body

2016 DIGILAW 360 (MP)

B. P. Khare v. State of M. P.

2016-05-02

ROHIT ARYA

body2016
ORDER 1. This petition, under Article 226 of the Constitution of India, has been filed stating that petitioner, while working as Medical Officer in Civil Hospital, Ganjbasoda, District Vidisha had applied for voluntary retirement on 1.9.2011 on the ground that his mother is paralyzed and, therefore, he is required to take care of her and for the said reason he is unable to perform his duties. Copy of the application is placed on record as Annexure P-2. The said application was received in the Office of CMO, Vidisha on 1.9.2011 itself. However, the same has been rejected after almost three years by impugned communication dated 24.6.2014, whereby petitioner was given to understand that the application has been rejected on 19.5.2014. 2. On notice, respondents have filed counter affidavit and justified the order of rejection (supra) for the reasons stated in the order itself i.e. due to shortage of doctors in the department. 3. Learned counsel for the petitioner, taking exception to the aforesaid order, contends that the justification given for rejection of the application is dehors the provisions as contained in rule 48 of the M.P. Civil Services (Pension) Rules, 1976 (for short the “Pension Rules”) and the order impugned is in violation thereof. It is contended that even otherwise as the application for voluntary retirement was submitted and received on 1.9.2011 and the same since was not adverted to and decided within one month as required under rule 42(1)(a) of the Rules, the same is deemed to have been allowed as petitioner fulfilled other requisite qualification such as two years qualifying service and submission of application in Form 28. To bolster his submissions, learned counsel has relied upon judgment of Division Bench of this Court in Writ Appeal No.272/2014 decided on 7.10.2014. The same has attained finality as learned counsel for the petitioner submits that the SLP arising therefrom has been dismissed by the Hon'ble Supreme Court. 4. Shri Amit Bansal, learned Government Advocate does not dispute the aforesaid factual aspect of the matter. 5. To address on the controversy involved in this petition, though settled, it is considered apposite to quote the relevant part of rule 42 of the Pension Rules. The same reads as under :- 42. 4. Shri Amit Bansal, learned Government Advocate does not dispute the aforesaid factual aspect of the matter. 5. To address on the controversy involved in this petition, though settled, it is considered apposite to quote the relevant part of rule 42 of the Pension Rules. The same 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) 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 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.” 6. Admittedly, petitioner has completed 20 years of service. There is no decision by the competent authority to initiate any departmental enquiry or there is no departmental enquiry pending against the petitioner. Rejection of application on the premise of shortage of doctors in the department cannot be countenanced as such justification has no sanction of law under rule 42 of the Pension Rules. 7. Besides, a faint argument has been advanced by the learned Government Advocate that as petitioner has not challenged the order dated 19.5.2014 rejecting his application, therefore, for want of challenge to the aforesaid order, this writ petition deserves to be dismissed. 8. Needless to say that petitioner was communicated about rejection of the application through the impugned communication dated 24.6.2014 which bears reference to the order of rejection dated 19.5.2014. Hence, the impugned communication since itself communicates the rejection and the same is being quashed, such technical objection does not merit consideration. 9. Accordingly, the writ petition is allowed. The impugned order dated 19.5.2014 rejecting the application of the petitioner dated 1.9.2011, is quashed. Petitioner is deemed to have retired voluntarily after expiry of one month from the date of submission of application i.e. 1.9.2011 and is entitled for all monetary dues arising therefrom subject to adjustment of salary and other monetary benefits paid to him since 1.9.2011 till date.