Madhya Pradesh High Court
The State Of Madhya Pradesh vs Dr. Harendra Jaseja on 7 October, 2014
1 W.A.No. 272/2014
07.10.2014
Shri MPS Raghuvanshi, Additional Advocate General, for
the appellants/employer/State.
Shri V.K.Bhardwaj, Sr. Advocate with Shri Anvesh Jain,
Advocate for the respondent/employee.
Heard on I.A. No. 5972/2014, an application under Section 5
of Limitation Act for condonation of delay in filing the appeal.
Appeal, as per office report is barred by 34 days.
Having perused the averments made in the application and
submissions advanced, this Court is of the view that delay caused
in filing the appeal is satisfactorily explained. Accordingly,
application is allowed. Delay in filing the appeal is hereby
condoned.
Also heard on the question of admission.
This appeal by Appellants/State is directed against the order
dated 15/5/2014 in W.P. No. 952/2014(s). By the aforesaid
impugned order, the transfer order of the respondent (petitioner
therein) transferring him from Gwalior to Sagar has been quashed.
Facts relevant for disposal of this appeal are to the effect that
while serving as Associate Professor, respondent/employee submitted an application in the prescribed form on 6/8/2013 expressing his intention to seek voluntary retirement after expiry of one month's notice assigning reason inter alia to look after his 2 W.A.No. 272/2014 elder daughter Ms. Namita Jaseja who is suffering from Cerebral Palsy with mental retardation and undergoing treatment at Gwalior. In fact the respondent had also requested not to accord him any promotional benefit which could result into posting him elsewhere, for the same reason. Respondent sent reminders to State Government in the context of application seeking voluntary retirement. Respondent also stopped attending the office from 31/10/2013 afternoon. But to his surprise, he was subjected to transfer vide order dated 7/2/2014 transferring him from Gwalior to Sagar. This impugned order was passed much after expiry of notice period as indicated in the prescribed notice dated 6/8/2013.
The moot question involved in this appeal is as to whether appellants/employer acted within its authority having issued the transfer order dated 7/2/2014 after expiry of one month notice period from the date of submission of application for voluntary retirement submitted under Rule 42 (1) (a) of M.P. Civil Services (Pension) Rules, 1976 ?
To address upon the aforesaid question, it is necessary to carefully perused the provisions contained in Rule 42. for ready reference, the same is reproduced hereinbelow:-
"42. Retirement on completion of (20/25 years) qualifying service-(1) (a) Government servant may retire at any time after completing 20 years qualifying service, by giving a notice in form 28 to 3 W.A.No. 272/2014 the appointing authority at least one month before the date on which he wishes to retire or on payment by him of pay and allowances for the period of one month or for the period by which the notice actually given by him falls short of one month:
Provided that this sub-rule shall not apply to the Government servants mentioned in brackets against each of the following Departments, until they have not completed 25 years qualifying service:-
(a) Public Health & Family Welfare Department (Medial, Paramedical & Technical Staff);
(b) Medical Education Department (Teaching Staff, Paramedical & Technical staff):
Provided further that such Government Servant shall not be allowed to retire from service without prior permission in writing of the appointing authority under the following circumstances:-
(i) Where the Government servant is under suspension;
(ii) Where it is under consideration of the appointing authority to institute disciplinary action against the Government Servant:
Provided also that if the appointing authority has not taken the decision under clause (ii) of the second pro0viso, within six months from the date of notice given by the Government Servant with regard to such disciplinary action it shall be deemed that the appointing authority has allowed to such Government Servant to retire from service on the date after expiry of the period of six months.
(b) The appointing authority may in the public interest require a Government Servant to retire from service at any time after he has completed 20 years qualifying service or he attains the age of 50 years 4 W.A.No. 272/2014 whichever is earlier with the approval of the State Government by giving him three months notice in Form 29:
Provided that such Government servant may be retired forthwith and on such retirement forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing immediately before his retirement of, for the period by which such notice falls short of three months, as the case may be."
Upon perusal of the aforesaid, following ingredients are deducible therefrom:- (i) a Government Servant may retire at any time after completion of 20 years of qualifying service by giving a notice in Form 28 to the appointing authority; (ii) at lease one months notice from the date on which he wishes to retiree or on payment by him of pay and allowances for the period of one month.
First proviso thereto provides that in case employees are members of Medical, Paramedical & Technical Staff of Public Health and Family Welfare Department or Teaching Staff, Paramedical & Technical Staff of Medical Education Department, the number of years of qualifying service is 25 years for filing the application under Rule 42 (1) (a). Second proviso provides that A government servant shall not be allowed to retire from service without prior permission of the appointing authority if the 5 W.A.No. 272/2014 government servant is under suspension or under consideration of the appointing authority to institute disciplinary action against him. Third proviso provides a period of time, as limitation, of six months as regard decision to be taken by the appointing authority from the date of notice given by government servant with regard to such disciplinary action. If no decision is taken within six months, it shall be deemed that appointing authority has allowed such government servant to retire from service on the date after expiry of period of six months.
Now the facts in hand reveal that in the case of respondent/employee the qualifying years of service is 25 years which he completed before filing the application for voluntary retirement. Neither the responentis under suspension nor there was any matter pending before the appointing authority to institute disciplinary action against him as is evident from counter affidavit filed by the appellants/State Government. Under such circumstances, since respondent after completing 25 years of qualifying service wished to retire from service after expiry of one month notice from the date of submission of application dated 6/8/2013, the relationship of employee-employer had come to an end after expiry of notice period of 30 days.
Contention of appellants/State that the issue before the writ Court was also whether the transfer order issued under 6 W.A.No. 272/2014 administrative exigency could be interfered with or not; whereas, the writ Court by the impugned order entered into the issue of voluntary retirement of the petitioner and treated the respondent/employee stood voluntary retired on the date of expiry of one months notice and consequently has held that impugned transfer order issued subsequently on 7/2/2014 was of no consequence and quashed the transfer order. It is further contended that application of respondent/employee for voluntary retirement was under consideration and there was no order of the competent authority accepting the request for voluntary retirement and therefore, respondent/employee deemed to be continue in service and hence, there was no lack of authority on the part of employer in transferring the respondent/employee.
Heard learned counsel for the parties.
In the opinion of this Court sustainability of impugned transfer order is required to be addressed only if the respondent could be said to be in service as Associate Professor while being transferred from Gwalior to Sagar. Respondent/Employee's application dated 6/8/2013 seeking voluntary retirement with one month notice was after having qualifying 25 years of service and therefore the respondent was well within his rights to seek voluntary retirement immediately after expiry of one month period as indicated in the prescribed notice dated 6/8/2013. Undisputedly, 7 W.A.No. 272/2014 respondent is not under suspension. Further, there is nothing on record to suggest that any matter was under consideration before the appointing authority to institute disciplinary action against the respondent, therefore, no permission was required to accord sanction for voluntary retirement. Hence, under such circumstances, the voluntary retirement has come in existence immediately after expiry of one month period w.e.f. 5/9/2013. There was no employer-employee relationship between the appellants/State and respondent/employee. Appellants/State lacked authority while issuing the impugned transfer order. Learned Single Judge has elaborately explained the legal position as regard the consequence flowing from the application submitted by respondent/employee seeking voluntary retirement and reached to the conclusion that after expiry of one month notice period, the employer-employee relationship ceases and therefore no transfer order could be issued.
As such, no illegality is found in the order passed by learned Single Judge.
Appeal is hereby dismissed as bereft of merits.
(S.K.Gangele) (Rohit Arya)
Judge Judge
jps/-