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2017 DIGILAW 2588 (ALL)

Om Prakash Tewari v. State Of U. P.

2017-11-08

IRSHAD ALI, PANKAJ MITHAL

body2017
JUDGMENT : 1. Heard Sri Manoj Kumar Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. The petitioner has preferred this writ petition challenging the order dated 29th August, 2017, passed by the Joint Secretary, Government of Uttar Pradesh, refusing voluntary retirement to the petitioner on the ground that there is a great shortage of doctors in the department. 3. Learned Standing Counsel was given time on the last occasion to seek instructions. On the basis of instructions received by her vide letter dated 06th November, 2017, she informs that it is solely on the ground of shortage of doctors and it has not been found fit to permit voluntary retirement to the petitioner. 4. Rule 56 (c) & (d) of the Financial Hand Book, an inter alia, provides that a government servant may, by notice of three months to the appointing authority, voluntarily retire at any time after attaining the age of 40 years of he has completed qualifying service for twenty years and it shall be open to the appointing authority to allow the government servant to retire without any notice or by giving a notice of shorter period. 5. For the sake of convenience, the aforesaid Rule (c) & (d) are reproduced here-in-below:- "56 (c)Notwithstanding anything contained in Clause (a) or Clause (b), the appointing authority may, at any time, by notice to the any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may, by notice to the appointing authority, voluntarily retire at any time after attaining the age of [forty five years] or after he has completed qualifying service for twenty years. (d) The period of such notice shall be three months: Provided that- (i) any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice falls short of three months, at the same rates at which he was drawing immediately before his retirement. (ii) it shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice: Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only it if is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted. Provided also that the notice once given by a Government servant under Clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of appointing authority. 6. A reading of the aforesaid provisions reveals that the following two conditions are necessary to be fulfilled for seeking voluntary retirement by a government servant; (i) he must have attained the age of 40 years or has completed 20 years of qualifying service; and (ii) he has given notice of three months to the appointing authority unless notice is waived or the period of notice is reduced. 7. The impugned order does not states that the petitioner does not fulfil the above conditions. Instructions of leaned Standing Counsel are also to the effect that the conditions laid down in Rule 56 (c) of the Financial Hand Book are not fulfilled by the petitioner. 8. The petitioner has moved an application seeking voluntary retirement on 01.04.2017. The receipt of the said application is not denied by the respondents. Therefore, in view of the above Rule, the petitioner retires on the expiry of three months of notice period from the receipt of the said application. 9. In Dinesh Chandra Sangma Vs. State of Assam and others, (1977) 4 SCC 441 , it has been held that once the conditions of Rule 56 (c) of the aforesaid Rules are fulfilled, the government servant must be held to have lawfully retired as notified. 10. The aforesaid decision was followed in another case by the Supreme Court, reported in (1978) 2 SCC 202 , B.J. Shelat Vs. State of Gujarat and others, holding that permission to retirement can be withheld by the appointing authority either when the government servant is under suspension or if departmental proceedings are pending or contemplated against him. 10. The aforesaid decision was followed in another case by the Supreme Court, reported in (1978) 2 SCC 202 , B.J. Shelat Vs. State of Gujarat and others, holding that permission to retirement can be withheld by the appointing authority either when the government servant is under suspension or if departmental proceedings are pending or contemplated against him. Otherwise, he voluntarily retires on the expiry of the notice period as contemplated by Rule 56 (c) of the Financial Hand Book. 11. In another decision of Union of India and others Vs. Sayed Muzaffar Mir, 1995 Supp (1) Supreme Court Cases 76, the Supreme Court, referring to both the above decisions, ruled that where the government servant seeks premature retirement the same does not require any acceptance and comes into effect on the completion of the notice period subject to fulfilment of conditions contained in Rule 56 (c) of the Financial Hand Book. 12. In the view of the aforesaid legal position, the respondents cannot withhold the premature retirement of the petitioner on the ground that there is a shortage of doctors. The said ground is not available to the respondents either for withholding or refusing premature retirement to the petitioner, if he otherwise fulfils all the necessary conditions as laid down in Rule 56 (c) of Financial Hand Book. 13. The petitioner is not said to be under suspension and no departmental proceedings are contemplated or pending against him. Therefore, the petitioner does not fall under the exceptional clause. 14. Thus, in the facts and circumstances of the case, the impugned order dated 29th August, 2017 is not sustainable in law and accordingly, is quashed with the direction to the respondents to treat the petitioner having voluntary retired pursuant to his application dated 01.04.2017 from the date of communication of this order to the authorities concern as on the basis of the impugned order, the petitioner was compelled to work even after the expiry of the notice period. The writ petition is allowed as aforesaid.