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SUPREME COURT OF INDIA
Arun Mishra, S. Abdul Nazeer, JJ.
State of Uttar Pradesh & Ors. - Appellants
Versus
Achal Singh - Respondent
Civil Appeal Nos. 8421, 8422, 8423 & 8424 of 2018 (Arising out of S.L.P. (Civil) Nos. 12601, 18737, 18739 & 18741 of 2018)
Decided On : 21-08-2018
(b) Uttar Pradesh Fundamental Rules – Rule 56 – F.R. 56 binds the Government as well as the Government servant – The option to government servant to voluntarily retire with three months' previous notice, after he reaches 50 years of age or has completed 25 years of service – Not absolute – Subject to explanation 2 empowering government to take a decision either way in public interest – Explanation becomes part of the main section – Held, notice of voluntary retirement does not come into effect automatically on the expiry of the three months period – Appointing authority has to accept or reject the notice for voluntary retirement on permissible grounds. (Para 15, 17, 20, 25)
AIR 1953 SC 252; AIR 1955 SC 661; (1999) 4 SCC 293; (1996) 4 SCC 584; (2009) 10 SCC 514; (2013) 14 SCC 486; (2001) 3 SCC 290 – Relied upon
ILR 1 Punjab & Haryana 46; 2010 SCC Online P&H 6159; (2014) SCC Online Raj 6253 – Referred
(1977) 4 SCC 441; (1978) 2 SCC 202; (1964) 5 SCR 683 – Distinguished
(c) Administration of justice – Principles of not unsettling law unless for compelling reason – Instantly question is not that of unsettling the law – It is one of applying the law. (Para 27)
(1987) Supp SCC 528 – Referred
(d) Interpretation of statute – Explanation and proviso – Proviso to rule 56(d) not instantly applicable – Hence it cannot dilute provisions of the Explanation with respect to exigencies mentioned in clause (c) of Rule 56. (Para 31)
(e) Fundamental rules – Statutory rules made under section 241(2)(b) of the Government of India Act,1935 – Provisions not unfair, unreasonable and oppressive. (Para 32)
(f) Uttar Pradesh Fundamental Rules – Rule 56 – Liberty of not to serve under Article 19(1)(g) – Retirement carries pecuniary benefits – Can be subject to certain riders – General public has the right to obtain treatment from super skilled specialists – Public interest – Article 47 and Article 51(A), constitution of India. (Para 33, 34, 35)
(1980) 2 SCC 768 – Relied upon
Facts of the case:
The main question for consideration before us is as to whether under Rule 56 of the Uttar Pradesh Fundamental Rules (hereinafter referred to as the “Fundamental Rules”) as amended, an employee has unfettered right to seek voluntary retirement by serving a notice of three months to the State Government or whether the State Government under the Explanation attached to Rule 56 of the Fundamental Rules, is authorised to decline the prayer for voluntary retirement in the public interest under clause (c) of Rule 56 of the Fundamental Rules as applicable to the State of Uttar Pradesh.
The respondent Dr. Achal Singh was working as Joint Director in Medical, Health and Family Welfare, Lucknow Region, Lucknow filed an application dated 14.12.2016 for voluntary retirement w.e.f. 31.3.2017. Respondent – Dr. Ajay Kumar Tiwari was holding the post of Joint Director, Medical, Health and Family Welfare, Devi Patan Mandal, Gonda, filed an application on 28.2.2017 seeking voluntary retirement w.e.f. 31.5.2017. Respondent Dr. Rajendra Kumar Srivastava was working as Senior Consultant, filed an application for voluntary retirement on 15.4.2015 and respondent Dr. Rajiv Chaudhary was working as Senior Consultant at District Hospital, Raibareli, he sought voluntary retirement by filing an application on 3.12.2016. The applications remained unattended and no order had been communicated, hence writ petitions were filed in the High Court. The respondents-doctors were members of the Provincial Medical Services.
The High Court has allowed the writ petitions and treated the doctors to have retired voluntarily on the dates specified.
Finding of the Court:
The option to government servant to voluntarily retire with three months' previous notice, after he reaches 50 years of age or has completed 25 years of service is not absolute.
Result: Appeals allowed.
Based on the provided legal document, the key points are as follows:
The option for government servants to voluntarily retire with three months' notice after reaching 50 years of age or completing 25 years of service is not an absolute right. The decision to accept or reject such a request depends on the public interest and the discretion of the appointing authority (!) (!) (!) .
The relevant rules specify that retirement through voluntary notice requires an express order of approval from the appointing authority; it does not automatically come into effect upon expiry of the notice period unless explicitly accepted (!) (!) (!) .
The rules are statutory and bind both the government and the employee. They are not akin to a contractual agreement where automatic retirement occurs upon notice expiry; rather, the authority must actively approve the retirement (!) (!) (!) .
The language of the rules and their explanations clearly indicate that the decision to retire voluntarily is conditional and based on public interest considerations. The authority can refuse permission for retirement if it is deemed against the public interest, and such refusal must be communicated before the expiry of the notice period (!) (!) (!) .
The right to retire voluntarily is subject to the authority’s discretion, and the retirement does not become effective automatically without approval. The authority’s decision, whether to accept or refuse, is integral to the process (!) (!) (!) .
The rules provide that pension and retirement benefits are payable once the employee has retired in accordance with the rules, but the actual retirement is contingent upon the approval of the appointing authority (!) (!) (!) .
The legal interpretation emphasizes that the relationship of master and servant continues until the authority explicitly grants permission for retirement. The absence of communication of refusal within the notice period does not automatically mean retirement has occurred (!) (!) .
The rules prohibit withdrawal of a voluntary retirement request once made, except with the permission of the appointing authority, and any decision in this regard must be based on the conditions specified in the rules (!) (!) .
The rules also stipulate that in certain circumstances, such as pending disciplinary proceedings or suspension, permission to retire may be withheld, but such withholding must be communicated explicitly and within the notice period (!) .
Overall, the legal framework underscores that voluntary retirement under the rules is a process that requires active approval, and the rights of the employee to retire are not absolute but subject to the public interest and the discretion of the appointing authority (!) (!) (!) .
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JUDGMENT :
Arun Mishra, J.
1. Leave granted.
2. The State of Uttar Pradesh in the appeals is aggrieved by common judgment and order dated 29.11.2017 passed by the Division Bench of the High Court of Allahabad, allowing the writ petitions filed by the respondents herein seeking voluntary retirement from the Government services. Directions were issued to treat the respondents to have retired from Government services with effect from 30.11.2017 and 31.12.2017.
3. The main question for consideration before us is as to whether under Rule 56 of the Uttar Pradesh Fundamental Rules (hereinafter referred to as the “Fundamental Rules”) as amended, an employee has unfettered right to seek voluntary retirement by serving a notice of three months to the State Government or whether the State Government under the Explanation attached to Rule 56 of the Fundamental Rules, is authorised to decline the prayer for voluntary retirement in the public interest under clause (c) of Rule 56 of the Fundamental Rules as applicable to the State of Uttar Pradesh.
4. The respondent Dr. Achal Singh was working as Joint Director in Medical, Health and Family Welfare, Lucknow Region, Lucknow filed an application dated 14.12.2016 for voluntary retirement w.e.f. 31.3.2017. Respondent – Dr. Ajay Kumar Tiwari was holding the post of Joint Director, Medical, Health and Family Welfare, Devi Patan Mandal, Gonda, filed an application on 28.2.2017 seeking voluntary retirement w.e.f. 31.5.2017. Respondent Dr. Rajendra Kumar Srivastava was working as Senior Consultant, filed an application for voluntary retirement on 15.4.2015 and respondent Dr. Rajiv Chaudhary was working as Senior Consultant at District Hospital, Raibareli, he sought voluntary retirement by filing an application on 3.12.2016. The applications remained unattended and no order had been communicated, hence writ petitions were filed in the High Court. The respondents-doctors were members of the Provincial Medical Services.
5. The High Court in the impugned judgment and order has observed that it is the responsibility of the authorities to monitor the health system in the State and they have to sincerely examine the issues as to how the working of the Government hospitals can be improved for the betterment of the general public and find out why doctors are opting for voluntary retirement every day. The High Court also observed that the doctors are not interested in joining the Government service when fresh recruitments take place. The High Court has also noted that posts of Medical Officers are not being filled up on account of non-availability of candidates. The High Court has further noted that those who have entered into Government service are continuously opting for voluntary retirement from service causing serious scarcity of doctors in Government hospitals and Primary Health Centres.
6. The High Court in the impugned judgment has also referred to the report of the MCI and the existing proportion of one doctor per 2000 population. In fact, the number of doctors is much smaller than the number given in the MCI report. The High Court also observed that the doctors are being posted, in spite of scarcity, on the administrative posts that causes wastage of specialised talent. The High Court has also observed that the authorities must provide adequate infrastructure, working equipment, and a proper working environment. The hospitals should be made excellent centres of health care. It should be the object of the State Government to provide doctors with good opportunities so as to retain them in services. At the same time, the High Court has also observed that in order to enhance the better medical facilities to the poor and needy people, it would be appropriate to maintain a balance between the senior and junior doctors in each Primary Health Centres in rural and urban areas. There is a need to provide continuing medical education to doctors and to hold conferences and seminars to exchange the latest views/opinions/
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