IMPORTANT POINT
The main legal point established in the judgment is that the right to apply for voluntary retirement must be exercised prior to the coming into effect of the new subrule 75 (aaaa) and that the State has the right to adjudge an application for voluntary retirement on the touchstone of public interest.

JUDGMENT :

DEBANGSU BASAK, J.

1. State has assailed an order dated January 3, 2017 passed by the West Bengal Administrative Tribunal in OA 346 of 2015.

2. By the impugned order, the Tribunal has held that, right to retire voluntarily from service accrues immediately on fulfilment of the preconditions laid down for such purpose under Rule 75 of the West Bengal Service Rules Part I, 1971 before the insertion of new Sub-Rule 75 (aaaa) therein. It has held that, as and when the incumbent serves notice on the authorities expressing his desire to voluntarily retire from service, it is a step taken to enforce the right that had already accrued to him. The tribunal has held that, incumbents who fulfilled the preconditions laid down for such purpose in Sub-Rule 75 (aaa) of the Rules of 1971 before the date of insertion of the new subrule 75 (aaaa), the right to voluntarily retire from service had already accrued to them and therefore, irrespective of whether or not they have submitted notice for voluntary retirement prior to the date of insertion of the new subrule, they shall have the right to voluntarily retire from service in accordance with subrule 75 (aaa) of the rules of 1971 and that the new subrule 75 (aaaa) of the rules of 1971 shall not be applicable to them.

3. Learned Senior Advocate appearing for the State has contended that, the issue of voluntary retirement and the insertion of Rule 75 (aaaa) to the Rules of 1971 has been considered by the Supreme Court in 2019 Volume 16 Supreme Court Cases 348 (State of West Bengal and others versus Dr. Tanmoy Mondal). He has contended that, public interest can be invoked by the Government when voluntary retirement is sought by an employee and a request for voluntary retirement can be rejected on the ground of public interest.

4. Learned Senior Advocate appearing for the State has contended that, the Tribunal did not declare Rule 75 (aaaa) of the Rules of 1971 as ultra vires any provision of law. Therefore, it should not have held that, a request for voluntary retirement of employees who were employed prior to the insertion of such rule would not be governed by the new Rule.

5. Learned Senior Advocate appearing for the State has submitted that, the ratio of Dr. Tonmay Mondal (supra) has been applied in WPST No. 103 of 2022 (The State of West Bengal and others versus Trilokendu Das) and 2023: CHC-A.S.: 44492-DB (The State of West Bengal and others versus Dr. Partha Sanyal).

6. Learned Senior Advocate appearing for the State has submitted that, the application for voluntary retirement made by the respondent No. 1 which was initially rejected, was subsequently accepted. Therefore, with such acceptance, respondent No. 1 has lost his cause of action. He has pointed out that, the respondent No. 2 is not contesting the writ petition any further.

7. Learned Senior Advocate appearing for the respondent No. 1 has contended that, Rule 75 (aaaa) was inserted with effect from February 7, 2014. Such Rule cannot be given effect to retrospectively and has prospective application only. The Tribunal has held to such effect. Therefore, the decision of the Tribunal should not be upset.

8. Learned Senior Advocate appearing for the respondent No. 1 has submitted that, the aspect of retrospectivity of Rule 75 (aaaa) of the Rules of 1971 was not agitated and raised in any of the 3 authorities relied on by the State. He has contended that, an incumbent who had entered into service prior to the insertion of rule 75 (aaaa) to the Rules of 1971 is covered by the situation prevailing prior to such insertion. He has also referred to the concession recorded in the impugned order, made on behalf of the State.

9. The impugned order has been passed by the Tribunal in an original application instituted by 2 persons. The first original applicant before the Tribunal was a medical officer. He had applied for voluntary retirement before the authority by a letter dated December 2, 2011. He had received a letter dated February 13, 2012