Dr. Alok Bhati vs State of Rajasthan and Others

Gopal Krishan Vyas

Heard learned counsel for the parties. In this writ petition, the petitioner has challenged the order dated 26.05.2010 (Annexure-6) passed by the Additional Director (Gazetted), Medical and Health Services, Rajasthan, Jaipur, whereby, it has been informed by the said authority to the Chief Medical Officer, Government General Hospital, Sri. Ganganagar that due to non-availability of the doctors in the State, it is not possible to accept the prayer of petitioner Dr. Alok Bhati for voluntary retirement.

As per facts of the case, the petitioner after completion of 19 years of service filed an application for voluntary retirement w.e.f. 11.05.2010. The case of the petitioner was forwarded to the Government for acceptance of voluntary retirement vide Annexure-2 dated 19.02.2010. The State Government refused to accept the prayer of the petitioner for voluntary retirement solely on the ground that doctors are not available in the Department.

Learned counsel for the petitioner submits that according to Rule 50 of the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter referred to as "the Rules of 1996") there is provision for voluntary retirement. As per Rules for voluntary retirement, a government employee is required to give notice for three months'' and after completion of period of notice he can treat himself voluntarily retired automatically is no order contrary is passed by the Department before the date of notice expired.

In this case also, an application was filed on 10.02.2010 for seeking voluntary retirement w.e.f. 11.05.2010, but till that date no communication was received by the petitioner and latter on a communication dated 26.05.2010 was received by him sent by the respondent-Department, in which, prayer for voluntary retirement was refused on the ground of non-availability of Doctors.

Learned counsel for the petitioner submits that the reason for not accepting the prayer of petitioner for voluntary retirement is not sustainable in the eye of law, because as per Rule 50 of the Rules of 1996, the prayer for voluntary retirement can be rejected on the ground that if employee is under suspension and facing departmental inquiry or criminal proceedings are pending against him and no other ground is available with the respondents to refuse the prayer for voluntary retirement, but in this case, first of all the impugned order has been passed on 26.05.2010 after expiry of the period, so also, the reasons given in the order are also contrary to the Rule 50 of the Rules of 1996, therefore, this writ petition may be allowed and while quashing the order impugned dated 26.05.2010 the respondents may be directed to great the petitioner as voluntarily retired from services and grant all retiral benefits.

Per contra, learned counsel for the respondents submits that the prayer of petitioner for voluntary retirement was refused solely on the ground of non-availability of doctors in the State, therefore, it cannot be said that the order suffers from any illegality, more so, it is in the interest of public. According to counsel for the respondent, petitioner is not entitled to get any relief in this writ petition.

After hearing learned counsel for the parties, it emerges from the record that there is no pendency of departmental inquiry or any criminal case against the petitioner. He has made an application for voluntary retirement in accordance with the Rule 50 of the Rules of 1996 on 10.02.2010 and prayed for acceptance of voluntary retirement w.e.f. 11.05.2010.

Admittedly, no order was passed upon the prayer made by the petitioner till expiry of the period and latter on the impugned order dated 26.05.2010 has been passed solely on the ground that due to non-availability of doctors in the State the prayer for voluntary retirement cannot be accepted.

In Union of India and others Vs. Sayed Muzaffar Mir, the Hon''ble Supreme Court held that upon making a request for voluntary retirement, retirement comes into effect on completion of notice period even if no order has been passed and if any adverse order is passed after completion of the notice period such an order is non est. In State of Haryana and Others Vs. S.K. Singhal, the same view has been reiterated and Their Lordships of the Supreme Court held that after expiry of the period mentioned in the application for voluntary retirement, the employee must be deemed to have retired voluntarily.

In my opinion, the order impugned is not sustainable in the law because it has been passed against the spirit of Rule 50 of the Rules of 1996. Further, the said order has been passed after expiry of notice period, which expired on 11.05.2010, therefore, obviously, as per Rule 50 of the Rules of 1996 the petitioner was to be treated voluntarily retired automatically after expiry of the notice period. In view of above, the writ petition is allowed. The order impugned dated 26.05.2010 is hereby quashed and set aside. The respondents are directed to treat the petitioner voluntarily retired w.e.f. 11.05.2010 and release his all retiral benefits including pension within a period of three months'' from the date of receiving certified copy of this order.