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2017 DIGILAW 110 (CAL)

Tonmoy Mondal v. State of West Bengal

2017-01-20

BISWANATH SOMADDER, ISHAN CHANDRA DAS

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JUDGMENT : BISWANATH SOMADDER, J. 1. This review application arises out of a judgment and order dated 22nd August, 2014, rendered by a Division Bench of this Court presided over by the Hon'ble Justice Jayanta Biswas (as His Lordship then was) sitting with one of us (Ishan Chandra Das, J). 2. The only relevant reason for filing of the review application - as it appears - is, while dealing with the issues sought to be raised in W.P.S.T. 208 of 2014, the Division Bench took notice of a particular note, being Note 3, 2 appended to Rule 75 of the West Bengal Service Rules, Part I and proceeded to hold to the effect that the concerned Government employee's legal right to retire could not prevail over the public interest. 3. The relevant ground for seeking review is Ground 12, which is reproduced herein below:- "For that the order impugned has been passed without due and adequate consideration that the appended note III is applicable only to Rule 75(aa) which covers cases of compulsory retirement where the authority intends to retire an employee in public interest." 4. It is evident from the judgment and order dated 22nd August, 2014, that the Court was considering the issue as to whether a Medical Officer of Bolpur S.D. Hospital, District - Birbhum, could be granted voluntary retirement. The Court proceeded to uphold the decision of the Principal Secretary of the concerned department of Government of West Bengal - who had rejected the doctor's application for voluntary retirement primarily on the ground of public interest, by referring to Note 3 as appended to Rule 75 of the West Bengal Service Rules, Part I - upon setting aside the judgment and order passed by the learned tribunal dated 18th November, 2013. 5. It may be pertinent to take note at this stage that Rule 75 contains three sub-rules, namely, sub-rules (a), (aa) and (aaa). In the instant case, what the Division Bench took into consideration is Note 3 to be read in the context of Rule 75 sub-rule (aaa). 5. It may be pertinent to take note at this stage that Rule 75 contains three sub-rules, namely, sub-rules (a), (aa) and (aaa). In the instant case, what the Division Bench took into consideration is Note 3 to be read in the context of Rule 75 sub-rule (aaa). For convenience, Rule 75 sub-rule (aaa) as well as Note 3 is set out herein below: - **(aaa) Any Government employee may, by giving notice of not less than 3 months in writing to the appointing authority, retire from Government service after he has attained the age of 50 years, if he is in Group A or Group B (erstwhile gazetted) service or post, and had entered Government service before attaining the age of 35 years; and in all other cases, after he has attained the age of 55 years, provided that it shall be open to the appointing authority to withhold permission to a Government employee under suspension who seeks to retire under this sub-rule." "Note 3. - The appointing authority should invariably keep on record that in his opinion it is necessary to retire the Government employee in persuance of aforesaid rule in public interest. 6. In order to examine whether the judgment and order dated 22nd August, 2014, has an error apparent on the face of the record, it is necessary to read sub-rule (aaa) together with Note 3 again, in order to understand whether Note 3 has any relevance in relation to sub-rule (aaa). The scope of Note 3 - if it is read plainly - cannot apply to sub rule (aaa) since it is clear that when a Government employee gives notice in terms of sub-rule (aaa) to retire from Government service, the appointing authority is required to grant permission to the Government employee seeking 3 retirement from service except in respect of those employees under suspension in which case the Government reserves its right to withhold permission to those employees. Note 3's relevance, however, could be clearly found in respect of sub-rule (aa), which contains a non-obstante clause, where the appointing authority has the absolute right to retire any Government employee, if it is of the opinion that it is in the "public interest" so to do. Note 3's relevance, however, could be clearly found in respect of sub-rule (aa), which contains a non-obstante clause, where the appointing authority has the absolute right to retire any Government employee, if it is of the opinion that it is in the "public interest" so to do. As such, Note 3 could not have been rationally or logically applied in respect of sub-rule (aaa) of Rule 75 of the West Bengal Service Rules, Part I, as relied upon by the earlier Division Bench in its judgment and order dated 22nd August, 2014. 7. We, therefore, hold that in such facts and circumstances as stated above, there is an error apparent on the face of the record in respect of the judgment and order dated 22nd August, 2014 and the said judgment and order is required to be interfered with - in review - in terms of the observations made herein above. 8. The review application taken out by the applicant, therefore, is allowed by restoring the order of the tribunal dated 18th November, 2013 and consequently allowing the application, being O.A. 754 of 2013. Can 1797 of 2015 stands accordingly disposed of. Ishan Chandra Das, J. - I agree. Review application allowed.