Rajasthan High Court - Jodhpur
Dr. Mahaveer Prasad Sharma vs . State Of Rajasthan & Ors. on 16 July, 2014
Author: Vineet Kothari
Bench: Vineet Kothari
S.B. Civil Writ Petition No.4411/2014
Dr. Mahaveer Prasad Sharma Vs. State of Rajasthan & Ors.
Order dt: 16/07/2014
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S.B. Civil Writ Petition No.4411/2014
Dr. Mahaveer Prasad Sharma Vs. State of Rajasthan & Ors.
Date of Order ::: 16th July, 2014
PRESENT
HON'BLE Dr. JUSTICE VINEET KOTHARI
REPORTABLE
Appearance:
Mr. Trilok Joshi, for the petitioner.
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BY THE COURT:
1. The petitioner working as Junior Surgeon in the respondent Medical and Health Department, sought voluntary retirement from service vide his application dated 07.03.2014, which however came to be rejected by the respondent, Deputy Secretary of the Medical and Health Department, Jaipur vide the impugned order dated 07.05.2014 (Annex.18) and being aggrieved by the same, the petitioner has preferred this writ petition assailing that order.
2. Mr. Trilok Joshi, learned counsel for the petitioner relied upon the provisions of Rule 50 of the Rajasthan Civil Service (Pension) Rules, 1996, (for brevity, hereinafter referred to as 'Pension S.B. Civil Writ Petition No.4411/2014 Dr. Mahaveer Prasad Sharma Vs. State of Rajasthan & Ors.
Order dt: 16/07/2014 2/10 Rules of 1996') and the Government of Rajasthan Decisions taken thereunder and certain case-laws rendered by this Court, and urged that since no enquiry is pending against the petitioner, the application for voluntary retirement from service after completion of the qualifying service of petitioner for 20 years deserves to be accepted and the same has wrongly been rejected by the respondents and, therefore, the writ petition deserves to be allowed.
3. The Rule 50 of the Pension Rules of 1996 and the Government of Rajasthan decisions taken thereunder, and cited before this Court, are quoted herein below for ready reference: -
"50. Retirement on completion of 15 years' qualifying service:
(1) At any time after a Government servant has completed fifteen years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.
(2) The notice of voluntary retirement given under sub-rule (1) shall requires acceptance by the appointing authority:
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall automatically become effective from the date of expiry of the said period. GOVERNMENT OF RAJASTHAN'S DECISION Guidelines for acceptance of notice- A notice of voluntary retirement given after completion of fifteen years qualifying service will require acceptance by the appointing authority. Such acceptance may be S.B. Civil Writ Petition No.4411/2014 Dr. Mahaveer Prasad Sharma Vs. State of Rajasthan & Ors.
Order dt: 16/07/2014 3/10 generally given in all cases except that the Appointing Authority shall withhold permission to retire a Government servant:
(i) who is under suspension;
(ii)in whose case the disciplinary proceedings are pending or contemplated for the imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case, is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service;
(iii)in whose case prosecution is contemplated or may have been launched in a court of law.
In such cases, if it is proposed to accept the notice of voluntary retirement approval of the Government should be obtained. Even where the notice of voluntary retirement given by the Government servant requires acceptance by the appointing authority, the Government servant giving notice may presume acceptance and the retirement shall be effective in terms of the notice unless the competent authority issues an order to the contrary before the expiry of the period of notice.
(3) (a) A Government servant referred to in sub- rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefor;
(b) On receipt of a request under clause (a), the appointing authority subject to the provisions of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on S.B. Civil Writ Petition No.4411/2014 Dr. Mahaveer Prasad Sharma Vs. State of Rajasthan & Ors.
Order dt: 16/07/2014 4/10 merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months.
GOVERNMENT OF RAJASTHAN'S DECISION In case a Government servant seeks voluntary retirement under Rule 50 (1) of Rajasthan Civil Services (Pension) Rules, 1996, with a view to contest any election to Parliament/State Assembly/Municipalities/ Panchayati Raj Institutions, he may be retired by the competent authority under rule 50 of RCS (Pension) Rule, 1996 immediately without prejudice to the right of Government going into the genuineness of the reasons and verification of the qualifying service rendered, and the period of notice prescribed under rule 50 (1) of Rajasthan Civil Services (Pension) Rules, 1996 shall in such cases be deemed to have been waived as a matter of course.
(4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, can make a request to withdraw the notice during its currency and he may continue in service. In such cases, it will be obligatory on the appointing authority to accept the request of withdrawing the notice of voluntary retirement of the Government servant. In cases, where the appointing authority has already issued the order for acceptance of voluntary retirement from the intended date of the Government servant such an order shall be cancelled by the appointing authority forthwith i.e. before the intended date of voluntary retirement;
S.B. Civil Writ Petition No.4411/2014 Dr. Mahaveer Prasad Sharma Vs. State of Rajasthan & Ors.
Order dt: 16/07/2014 5/10 (5) The pension and retirement gratuity of the Government servant retiring under this rule shall be based on the emoluments as defined under rule 45 of Rajasthan Civil Services (Pension) Rules, 1996, which the Government servant was receiving immediately before the date of retirement, and the increase not exceeding five years in his qualifying service under rule 51 shall not entitle him to any notional fixation of pay for purposes of calculating pension and gratuity.
(6) This rule shall not apply to a Government servant who retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement.
Explanation: For the purpose of this rule, the expression "appointing authority" shall mean the authority which is competent to make appointments to the service or post from which the Government servant seeks voluntary retirement.
(7) If a Government servant seeks retirement under this rule while he is on leave not due, without returning to duty, the retirement, shall take effect from the date of commencement of the leave not due and the leave salary paid in respect of such leave shall be recovered from him.
(8) A Government servant who gives notice of voluntary retirement under sub-rule (1) of rule 50 shall satisfy himself by means of a reference to the appointing authority who is competent to retire him to the effect that he has, in fact, completed 15 years qualifying service for pension."
S.B. Civil Writ Petition No.4411/2014 Dr. Mahaveer Prasad Sharma Vs. State of Rajasthan & Ors.
Order dt: 16/07/2014 6/10
4. The impugned order (Annex.18), which has been passed by the competent authority before the expiry of notice period of three months on 07.05.2014 is also quoted herein below for ready reference: -
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5. The reasons assigned by the respondent the shortage of subject specialists in the Government Hospitals, increase in the S.B. Civil Writ Petition No.4411/2014 Dr. Mahaveer Prasad Sharma Vs. State of Rajasthan & Ors.
Order dt: 16/07/2014 7/10 number of patients in the Government hospitals and to make medical and health services available to the public at large, in the larger public interest, the application filed by the petitioner for seeking voluntary retirement from the service can not be accepted by the respondents.
6. In the judgment cited by the learned counsel for the petitioner before this Court in the case of Nathu Lal Meena Vs. State & Ors. reported in 2008 WLC (UC) 619, the learned Single Judge of this Court held that since within the statutory period of three months, no order was passed on the application of the employee/Government servant for seeking the voluntary retirement moved on 30.04.2001, the same shall deemed to have become effective and automatically accepted upon the expiry of three months and the petitioner became entitled to the retiral benefits upon such retirement after the qualifying service. The facts and circumstances of the aforesaid case are clearly distinguishable since a well reasoned order has been passed in present case within the stipulated period of three months and, therefore, there is no question of automatic acceptance of the VRS application as alleged and claimed.
7. The facts of another case law relied upon by the learned counsel for the petitioner in the case of Dr. Bhanwarlal Solanki Vs. State of Rajasthan & Ors. reported in 2008 WLC (UC) 39, are also absolutely distinguishable as the in the case of Dr. Bhanwarlal Solanki (supra), the incumbent unauthorizedly remained on leave from the duty, and the petitioner was subjected to an enquiry, which resulted in the imposition of penalty of stoppage of five annual grade S.B. Civil Writ Petition No.4411/2014 Dr. Mahaveer Prasad Sharma Vs. State of Rajasthan & Ors.
Order dt: 16/07/2014 8/10 increments with cumulative effect in a disciplinary matter on 28.02.2000, and the period for which he remained absent unauthorizedly, was treated as break in service later on. However, the application for VRS moved under Rule 50 of the Pension Rules of 1996, was accepted and he was permitted to avail the VRS under Rule 50 of the Pension Rules of 1996 with effect from 13.03.2002, but the grievance of the petitioner was that the respondents forfeited the entire service rendered by him prior to interruption in the service and were not giving him the pension for the aforesaid period; and therefore, the learned Single Judge of this Court allowing the writ petition held that the petitioner would still be entitled to the pensionary benefits including the period of interruption in the service. Such is not the controversy involved here in the instant case.
8. Upon consideration of the Government of Rajasthan decisions taken under the Rule 50 of the Pension Rules of 1996, quoted above, it is clear that VRS application should be normally granted unless the negative conditions operative viz. the Government servant is under suspension or is subject to the disciplinary proceedings, which are pending against him or are contemplated or the prosecution is also contemplated against him for some misconduct or offence allegedly committed by him.
9. Rule 50 of the aforesaid Pension Rules of 1996 envisages only the action on the part of the competent authority of either accepting such application for VRS or refusal thereof. In the absence of any communication for such refusal, a deemed acceptance of such application is provided for in Rule 50 (2) and S.B. Civil Writ Petition No.4411/2014 Dr. Mahaveer Prasad Sharma Vs. State of Rajasthan & Ors.
Order dt: 16/07/2014 9/10 proviso thereof. Sub-rule (2) of Rule 50 clearly requires a formal acceptance of such application by the appointing authority. The said power, therefore, necessarily implies a power to reject such application also on reasonable grounds. In the present case, since the VRS application of the petitioner has been rejected on the aforesaid ground of shortage of doctors, the increasing number of patients in the Government hospitals and in larger public interest, the same cannot be said to be refusal of application for VRS on unsustainable grounds. The reasons assigned by the competent authority are prima facie reasonable and acceptable. A further enquiry into the reasons assigned by the said authority would amount to a roving enquiry by this Court under Article 226 of the Constitution of India, which is not permitted. Unless the impugned order can be said to be without any reason or passed on shockingly arbitrary or unreasonable grounds, the Court under Article 226 of the Constitution of India cannot question the wisdom of the appointing authority in assigning those reasons for rejection of the application in such a case.
10. This Court is satisfied that the reasons assigned by the competent authority are reasonable and proper to reject such application at this stage and the application for VRS cannot be said to be fait accompli accepted application of the Government servant and it is not a matter of right of Government servant to seek voluntary retirement from service at any point of time after completion of qualifying service and the same can be rejected on reasonable grounds.
S.B. Civil Writ Petition No.4411/2014 Dr. Mahaveer Prasad Sharma Vs. State of Rajasthan & Ors.
Order dt: 16/07/2014 10/10
11. In the considered opinion of this Court, no mandamus directions can be issued to the respondents to accept the said application even while the reasons assigned in the impugned order exist for the appointing authority to refuse the same. The Rule 50 of the Pension Rules of 1996 clearly empowers such authority to reject the application also.
12. In view of above, the writ petition filed by the petitioner is found to be devoid of merit and the same is hereby dismissed at this stage. No costs. A copy of this order be sent to the concerned parties forthwith.
13. It may be however observed that rejection of this writ petition will not debar the petitioner for making such an application again after one year of this order and the competent authority will be free to pass appropriate order depending upon the facts and circumstances existing at that point of time.
(Dr. VINEET KOTHARI), J.
DJ/-
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