The central legal point established in the judgment is that the appointing authority has the power to decline voluntary retirement on public interest grounds under Note-3 of Rule 75(aaa) of the West Bengal Service Rules.

JUDGMENT

The State has filed the instant writ petition challenging an order of the West Bengal Administrative Tribunal dated 25th November 2019 in OA 942 of 2018 whereby and whereunder the order of the Additional Chief Secretary, Department of Health and Family Welfare, Government of West Bengal was quashed and set aside and a direction was passed upon the authority to pass a necessary order granting voluntary retirement to the respondent.

The undisputed facts emerged from the pleading of the respective parties are that the respondent was born on 21st August 1959 and completed fifty years of age and rendered more than twenty years of his service in the year 2008. By virtue of the provisions contained in Rule 75(aa) and 75(aaa) of the West Bengal Service Rules, Part-1, an application was taken out for voluntary retirement. The Additional Chief Secretary, Department of Health and Family Welfare, rejected the said application on the premise that such prayer for voluntary retirement cannot be acceded to on the larger public interest.

Such being the salient fact involved in the instant matter, the Tribunal manifestly proceeded on the basis that once the conditions enshrined in the enabling provision of Rule 75(aaa) have been fulfilled, there was no other option left to the Government to grant the prayer and allow the respondent a voluntary retirement.

It is no doubt true that Rule 75(aaa) of the said Service Rules confers a right on the Government employee to seek a voluntary retirement provided he gives a three months notice after attaining the age of fifty years and rendered service for a prescribed period. The Tribunal, in our opinion, overlooked the note appended to the aforesaid provision and hovered around the subsequent amended provision brought by way of an amendment with effect from 7th February 2014 by inserting Rule 75(aaaa). The said amended Rule starts with a non-obstante clause and excludes the applicability of the provisions contained in Rule 75(aa) and 75(aaa) of the said Service Rules to have any manner of application in relation to the holder of the service in West Bengal Health Services, the West Bengal Medical Education Services, the West Bengal Public Health-cum- Administrative Services, the West Bengal Dental Service and the West Bengal Dental Education Services.

Initially, it was contended by the State that such amended provision overrides the provisions contained in Rule 75(aa) and 75(aaa) of the said Service Rules, as the respondent is rendering the services in the prescribed department. The Tribunal appears to have been swayed by such argument and held that the aforesaid amended provision i.e. Rule 75(aaaa) of the said Service Rules is not applicable and the case of the respondent is to be guided and/or considered on the parameters of the provisions contained in Rule 75(aaa) of the said Service Rules.

There has been a drift in the stand of the State in the instant writ petition. It is contended that even if the observations of the Tribunal is correct yet it does not confer any right upon the respondent to seek voluntary retirement on a mere drop of the hat or on fulfillment of the parameters enshrined therein, as the Tribunal overlooked and ignored the note appended thereto. In support of the aforesaid contention, reliance is placed on a three Judges Bench of the Supreme Court rendered in case of State of West Bengal and others vs. Dr. Tonmoy Mondal, reported in (2019) 16 SCC 348.

After perusal of the judgement and the ratio decidendi deduced therefrom we find that there is a parity not only on the facts but of the consequences to follow on the interpretation of the aforesaid provisions. In the said Report, the respondent therein joined the medical service in the year 1986 and sought voluntary retirement in the year 2013. The Government declined to grant such prayer on the ground of public interest. The order of the authority was challenged before the Tribunal solely on the ground that the concept of public inter