Madras High Court
S. Jeyalakshmi vs The State Of Tamil Nadu on 26 July, 2012
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26-7-2012 CORAM: THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR Writ Petition No.10756 of 2012 M.P.Nos.1, 2 & 3 2012 S. Jeyalakshmi .. Petitioner Vs. 1. The State of Tamil Nadu, rep.by the Secretary to Government, Health & Family Welfare Department, Secretariat, Chennai 9. 2. The Director of Medical & Rural Health Services, Teynampet, Chennai 6. 3. The Commissioner, Indian Medicine & Homeopathy Department, Chennai 106. .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records on the file of the third respondent in connection with the order passed by him in his Proc.Na.Ka.No.15337/A.Na.3/2011, dated 20.2.2012 and quash the same and direct the respondents to relieve the petitioner from service on voluntary retirement with effect from the afternoon of 31.3.2012 with all monetary and service benefits as per the Fundamental Rules and Government Orders. For Petitioner : Mr.R.Singaravelan For Respondents : Mr.V.Subbiah, Special Government Pleader O R D E R
The prayer in the writ petition is to quash the order of the third respondent dated 20.2.2012, rejecting the request of the petitioner for voluntary retirement and to direct the respondents to relieve the petitioner from service with effect from the afternoon of 31.3.2012 with all monetary and service benefits as per the Fundamental Rules and Government Orders.
2. The brief facts necessary for disposal of the writ petition are as follows:
(a) Petitioner was selected and appointed as Junior Assistant through TNPSC in the Medical Department i.e, in Government Hospital of Thoracic Medicine, Tambaram Sanatorium, Chennai-47, on 7.3.1987. After her marriage, petitioner opted for transfer to the Directorate of Indian Medicine and Homeopathy, Chennai-106, and joined there on 1.9.1999. Petitioner was promoted as Assistant and further promoted as Office Superintendent and she completed 25 years of service without any blemish and now she is 45 years old.
(b) According to the petitioner, she is suffering from diabetics, chronic respiratory lungs defects and hyper tension. Petitioner also suffered from Tuberculosis and took treatment in 2005 and 2007. Due to hernia problem petitioner is suffering from chronic abdominal pain.
(c) In December, 2011, petitioner suffered asthmatic breathing problem. Therefore petitioner was not able to concentrate on her works and she has submitted an application on 14.12.2011 seeking voluntary retirement with effect from the afternoon of 31.3.2012. Petitioner also enclosed medical records to show her medical problems.
(d) The third respondent by order dated 20.2.2012 rejected the request of the petitioner on the ground that due to administrative reasons and large number of vacancies having not been filled up, petitioner's request for voluntary retirement cannot be considered and rejected her application.
(e) The said order is challenged in this writ petition contending that petitioner having completed more than 25 years of services, she is entitled to submit application seeking voluntary retirement giving three months notice; that the reason for rejecting the request of the petitioner, that is administrative reason and availability of large number of vacancies in the department, are not the grounds mentioned under FR.56(3); that the Superintendent post is not a scarce category of post declared by the Head of the Department; and therefore the order of the third respondent is unsustainable. Petitioner has filed an additional typed set of papers showing the medical treatments taken by her.
3. The third respondent has filed a counter affidavit contending that in the application submitted for voluntary retirement, petitioner has stated the reason as family circumstances and the medical reasons now stated are invented for the purpose of the case. Petitioner had applied for medical leave, which was granted and was advised to join duty on 17.4.2012 i.e, after rejection of her request for voluntary retirement. Accordingly petitioner joined duty on 17.4.2012 and therefore the writ petition challenging the order dated 20.2.2012 and seeking voluntary retirement from 31.03.2012 afternoon is unsustainable. It is further stated in the counter affidavit that petitioner's service is very much required as she is efficient and experienced.
4. Mr.R.Singaravelan,the learned counsel appearing for the petitioner submitted that the petitioner is entitled to submit application for voluntary retirement as per FR.56(3) and the Superintendent post being not declared as a "scarce category of post", the reason stated by the third respondent in the impugned order is not at all the valid reasons to reject the request of the petitioner for voluntary retirement. The learned counsel also submitted that after rejection of voluntary retirement request vide impugned order passed on 20.2.2012, petitioner was forced to report for duty on 17.4.2012 and due to her illness, again she applied for medical leave from 18.4.2012 i.e, from the next date and the said action of the respondents in forcing the petitioner to join duty cannot stand in the way of the petitioner in challenging the order of the third respondent dated 20.2.2012 and praying for seeking voluntary retirement from 31.3.2012. Learned counsel also relied on various decisions to support his contentions.
5. Mr.V.Subbiah,the learned Special Government Pleader appearing for the respondents reiterated the contentions raised in the counter affidavit and submitted that the Superintendent post, in which, the petitioner is posted was not declared as "scarce category of post" by the administrative department as on date. The learned Special Government Pleader further submitted that if any fresh application giving three months time is submitted, respondents will consider the same.
6. I have considered the rival submissions of the learned counsel for the petitioner as well as the learned Special Government Pleader appearing for respondents and considered the materials available on record.
7. The points for consideration in this writ petition is as to whether the petitioner can seek for voluntary retirement from 31.3.2012 and the rejection of the said request by third respondent vide impugned order dated 20.2.2012 is valid or not.
8. Petitioner has entered into service on 7.3.1987 as Junior Assistant in the Medical Department of Government of Tamil Nadu i.e, in Government Hospital of Thoracic Medicine, Tambaram Sanatorium, Chennai-47. After marriage, petitioner opted for transfer to the Directorate of Indian Medicine and Homeopathy, Chennai-106, and joined there on 1.9.1999. Subsequently she was promoted as Assistant and then as Office Superintendent. For the purpose of calculation of total service of 25 years, petitioner's services from 7.3.1987 to be taken into consideration. Thus the petitioner completed her 25 years of service before 31.03.2012.
9. On 14.12.2011, petitioner has submitted the application seeking voluntary retirement with effect from 31.3.2012 FR.56(3) is the relevant rule for submitting application seeking voluntary retirement and for its acceptance, which reads as follows:
"FR.56(3). Voluntary retirement: (a) A Government Servant who has attained the age of fifty years or who has completed twenty years of qualifying service, may retire from service by giving notice of not less than three months in writing direct to the appointing authority with a copy marked to his immediate superior officer for information. Before giving such notice, he may satisfy himself by means of a reference to such authority that he has completed the required number of years of qualifying service.
Explanation (i): The term "appointing authority" means the authority which has power to make substantive appointment to the post or service from which the Government Servant wants to retire and includes any higher authority to such appointing authority.
Explanation (ii):The term "qualifying service" means permanent or officiating service (including temporary service under emergency provisions) rendered in a post included in a pensionable establishment without interruption.
(G.O.Ms.No.39, Personnel and Administrative Reforms (F.R.III) Department, dated 14th February 1997-with effect from 14th February 1997)
(b)The period of three months notice shall be reckoned from the date of receipt of notice by the appointing authority.
(c) The three months notice may be given before the Government servant attains the qualifying age or the qualifying service, as the case may be, provided that the retirement takes place after attaining the specified age or completing the required number of years of qualifying service, as the case may be.
(d)(i)A Government servant including a Government servant in the Tamil Nadu Basic Service retiring Voluntarily shall be given a weightage not exceeding five years,subject to the condition that the total qualifying service rendered by such Government Servant, including weightage, does not in any case exceed Thirty years of qualifying service, and it does not take him beyond the date of superannuation, as the case may be. The weightage shall be calculated as specified in the Table below:-
........
........
(e) notice of voluntary retirement given by a Government servant shall be accepted by the appointing authority, subject to the following conditions being satisfied namely:-
(i) that no disciplinary proceedings are contemplated or pending against the Government servant concerned for the imposition of a major penalty;
(ii) that no prosecution is contemplated or pending in a Court of Law against the Government servant concerned;
(iii) that a report from the Director of Vigilance and Anti-corruption has been obtained to the effect that no enquiry is contemplated or pending against the Government Servant concerned;
(iv) that no dues which cannot be recovered from his Death-cum-Retirement Gratuity or pending to be recovered from the Government servant concerned; and
(v) that there is no contractual obligation to serve the Government during the period in which the Government servant concerned seeks to retire voluntarily.
(f) The appointing authority shall issue orders before the date of expiry of notice either accepting the voluntary retirement or not. Otherwise, the Government servant shall be deemed to have been retired voluntary from service at the end of the period of notice:
Provided that where a Government servant under suspension or against whom disciplinary or criminal action is pending, seeks to retire voluntarily, specific orders of the appointing authority for such voluntary retirement is necessary. The appointing authority may with-hold the permission sought for by the Government servant, if any of the conditions specified in Clause (e) are not satisfied.
(g) The Government servant may withdraw the notice of voluntary retirement or withdraw the voluntary retirement after acceptance, as the case may be, subsequently with the approval of the appointing authority, before the expiry of the period of notice."
Subsequently, the said FR was amended through G.O.Ms.No.179 P&AR Department dated 29.9.2008, particularly FR.56(3) clause (f) after the proviso, stating that 'the appointing authority may also withhold the permission for voluntary retirement sought for by a government Servant, if the post held by him has been declared as "scarce category" by the administrative department concerned in Secretariat and whose continuation in Government Service is absolutely essential in public interest'.
10. When the case was heard on 09.07.2012, the learned Special Government Pleader was specifically directed to ascertain as to whether the post held by the petitioner viz., Office Superintendent post in the Department of Indian Medicine and Homeopathy was already declared as 'scarce category' post. The learned Special government Pleader, on 10.07.2012, on specific instruction, submitted that no such declaration was made stating that the Office Superintendent post held by the petitioner is declared as 'scarce category' till date. Thus, the amendment issued in G.O.Ms.No.179 P&AR Department, dated 29.9.2008 has no application to the facts of this case.
11. The eligibility of the petitioner to apply for voluntary retirement as per FR.56(3) is not disputed in the counter affidavit. The only reason stated is that the petitioner's request cannot be considered as her services are essentially required for the welfare of administration. The said reason cannot be a reason as contemplated under FR.56(3)(e). An application for voluntary retirement can be rejected only under FR 56(3)(e)Clauses (i) to (v) extracted above or if the petitioner's post is declared as 'scarce category' and not on other grounds. Rule 56(3)(f) proviso makes it very clear that voluntary retirement request can be rejected only on the basis of conditions mentioned in Clause(e)(i)to(v).
12. Similar issue was considered by me in W.P.No.15066 of 2006 order dated 5.7.2007. The said order was followed in W.P.No.29525 of 2007 dated 25.10.2007 wherein it was held that the authority can reject the request for voluntary retirement only for the reasons mentioned in FR.56(3)(e) clauses (i) to (v). The said order was challenged in W.A.No.544 of 2008. In paragraph 3 it is held thus:
"3. The said order was implemented by the respondent department. The said order was subsequently followed in W.P.No.29525 of 2007 dated 25.10.2007, against which a writ appeal in W.A.No.544 of 2008 was filed by the respondents. The Division Bench of this Court dismissed the writ appeal by observing as follows:-
"3. Learned Additional Advocate-General appearing for the appellants argues that Rule 56(3)(e) is merely an enabling provision and that enables the Government to refuse the Government Servant's prayer for voluntary retirement. He further submits that Rule 56(3)(e) is not exhaustive and it is the inherent right of the Government to refuse such prayer for voluntary retirement. He further submits that in the instant case, the prayer for voluntary retirement made by the respondent has been refused on cogent grounds and the learned Judge erred by not sustaining the Government Order. We are afraid that we cannot accept the said contention for the reasons indicated herein below.
4. The right of the Government Servant to pray for voluntary retirement is statutorily provided under Rule 56(3)(e) of the Fundamental Rules. Rule 56(3)(a) is set out below:-
"56(3)Voluntary retirement (a) A Government servant who has attained the age of fifty-years or who has completed twenty years of qualifying service may retire from service by giving notice of not less than three months in writing direct to the appointing authority with a copy marked to his immediate superior officer for information, before giving such notice, he may satisfy himself by means of a reference to such authority that he has completed the required number of years of qualifying service."
3. It is not in dispute that in the instant case, the respondent has completed 50 years of age and is coming within the purview of Rule 56(3)(a). After he makes such a prayer, the right of the Government to refuse such a prayer is also enumerated under Rule 56(3)(e) and various sub-clauses made thereunder. In this connection, Rule 56(3)(f) has some relevance and the same is quoted as under:
"56(3)(f) The appointing authority shall issue orders before the date of expiry of notice either accepting the voluntary retirement or not. Otherwise, the Government servant shall be deemed to have been retired voluntary from service at the end of the period of notice:
Provided that where a Government servant under suspension or against whom disciplinary or criminal action is pending, seeks to retire voluntarily, specific orders of the appointing authority for such voluntary retirement is necessary. The appointing authority may with-hold the permission sought for by the Government servant, if any of the conditions specified in clause (e) are not satisfied."
4. Rule 56(3)(f) makes it very clear that where the Government Servant is under suspension or disciplinary action is pending and he seeks voluntary retirement, specific orders of the appointing authority for such voluntary retirement is necessary. The next sentence in the proviso is important. It is for the appointing authority to withhold the permission sought for by the Government Servant, if any of the conditions specified in clause (e) are not satisfied. Therefore, on a conjoint reading of Rule 56(3)(e) and Rule 56(3)(f) we cannot accept the argument made by learned Additional Advocate-General appearing for the appellants that those are mere enabling provisions and do not circumscribe the Government's right to refuse the prayer for Voluntary Retirement. In this connection, we remind ourselves of the decision rendered by the Constitution Bench of the Supreme Court in ROSHAN LAL v. UNION OF INDIA (A.I.R. 1967 S.C.,1889). It has been stated by the Constitution Bench that the legal position of a Government Servant is more one of status than of contract. At the time of entering into service, the relationship may be one of contract. Once the Government Servant enters government service, the right and duties of the Government employees are controlled by statutory provisions. The said principle has been affirmed again by the decision of the Constitution Bench of the Supreme Court by majority of the Judges, in DELHI TRANSPORT CORPN. v. D.T.C.MAZDOOR CONGRESS (A.I.R. 1991 S.C. 101).
5. In view of such settled position, we are of the view that the right of the Government to refuse the prayer of an employee for going on voluntary retirement is controlled by the Rules and statutory provisions. That being the position, in the instant case, the reason which has been assigned in the Government's order refusing the pryer of the sole respondent (writ petitioner) to go on Voluntary retirement, cannot be sustained, since the said decision has not been taken within the four corners of the Rules. Therefore, we do not see any merit in this appeal and we affirm the decision of the learned single Judge of the Writ Court, may be on some additional grounds. The prayer of the Government servant to go on Voluntary retirement should be accepted by the Government and the terminal benefits of the respondent may be worked out and paid within a period of four weeks from this date. Writ Appeal fails and the same is dismissed. No costs. Consequently, miscellaneous petition is closed".
13. In W.P.No.22305 of 2008 order dated 11.9.2008 also, I had an occasion to consider similar prayer and allowed similar writ petition. The said order was again followed in W.P.Nos.21918 and 22400 of 2008 dated 30.9.2008 and the said writ petitions were also allowed with direction to the respondents therein to treat the petitioners therein as voluntarily retired from service as per their request. Writ appeal filed against the order in W.P.No.21918 of 2008 in W.A.No.2636 of 2010 was dismissed on 3.1.2011 and the S.L.P.No.17016 of 2011 was also dismissed on 23.8.2011 and the said orders were implemented by the very same Health Department, Government of Tamil Nadu which is the respondent department in this writ petition.
14. Similar provision regarding resignation was considered i.e.,as to whether the Government can reject the resignation request of its employee other than the reasons mentioned in Rule 41-A(d)of the Tamil Nadu State and Subordinate Service Rules before the First Bench of this Court in the decision reported in 2010 (6) CTC 491 (The Principal Secretary, Health and Family Welfare Department vs. Dr.N.Udayakumar). In Paragraphs 7 & 8, it is held thus:
7. Then, the subsidiary question that would arise for consideration is whether the Government is entitled to reject the resignation of its employee for any other reason it feels, except the ones mentioned in Rule 41-A(d).
8. For this, we have no hesitation to hold and answer that if it is the intention of the Legislature that the Government can reject the resignation of the employee for any reason whatsoever it feels, of course by offering reasons, as has been contemplated in Rule 41-A(c), there is no meaning in inducting Rule 41-A(d), which mandates that the 'notice of resignation given by the Government servant shall be accepted by the Appointing Authority', subject to the conditions specified thereunder."
The third respondent is bound to follow the above referred statutory provision namely FR 53(e) Clauses (i) to (v). He is not expected to state other reasons as per his whims and fancies to reject the request of the petitioner.
15. Applying the above cited decisions to the facts of this case and the stand of the learned Special Government Pleader that the post held by the petitioner is not declared as a "scarce category post", the impugned order dated 20.2.2012 is quashed and the writ petition is allowed. The third respondent is directed to permit the petitioner to go on voluntary retirement with effect from 31.3.2012. Necessary order is directed to be passed by the third respondent immediately with consequential sanction and payment of terminal benefits. The benefits shall be paid to the petitioner within a period of six weeks from the date of receipt of copy of this order. No costs. Connected miscellaneous petitions are closed.
Index : Yes/No.
Internet: Yes/No. 26-7-2012
vr
To
1. The Secretary to Government,
Health & Family Welfare Department,
Secretariat, Chennai 9.
2. The Director of Medical & Rural Health Services,
Teynampet, Chennai 6.
3. The Commissioner, Indian Medicine & Homeopathy Department,
Chennai 106.
N. PAUL VASANTHAKUMAR, J.
Vr
Pre-Delivery Order in
W.P.No.10756 of 2012
26-7-2012