Dr. Harendra Jaseja vs State of MP and Another

Sujoy Paul, J.—This writ petition is filed under Article 226 of the Constitution, challenging the order dated 07-02-2014 (Annexure P-1), whereby the petitioner is transferred from Gwalior to Sagar. In addition, it is prayed that the petitioner''s application for voluntary retirement be decided and necessary benefits be extended in his favour.

The petitioner was appointed on 24-12-1979 as Demonstrator. He was subsequently promoted to the post of Assistant Professor on 02-04-1987 and then to the post of Associate Professor on 01-01-2002. It is urged by Shri V.K. Bhardwaj, learned Senior Counsel for the petitioner that the petitioner''s whole service record is clean, excellent and unblemished.

The petitioner''s elder daughter Ms. Namita Jaseja is suffering from Cerebral Palsy with mental retardation. To look after her daughter, petitioner made a request to the respondents-authorities to not to award him any further promotion which may result into his posting elsewhere. Due to health condition of daughter, petitioner decided to take voluntary retirement to look after her. He submitted an application in prescribed form on 06-08-2013 (Annexure P-5). One month''s notice for voluntary retirement was given by assigning reason of daughter''s ailment. In addition, petitioner informed that he himself is suffering from certain ailments.

The Department did not take any decision on the said application. Petitioner, in turn, sent reminders and then stopped attending the Office from 31-10-2013 afternoon. Neither main application seeking voluntary retirement nor reminders could fetch any result. Petitioner was served with transfer order dated 07-02-2014 (Annexure P-1). After preferring representation against it, this petition is filed.

It is submitted by learned Senior Counsel for the petitioner that as per Rule 42 of M.P. Civil Services (Pension) Rules, 1976 [hereinafter referred to as "the Rules''], voluntary retirement automatically comes into effect after 30 days from 06-08-2013. In absence of its rejection, during notice period, automatic permission can be presumed. In support of his submissions, he relied on 1985 MPLJ 229 [Indra Prakash Bhatnagar vs. State of MP & another], Tek Chand Vs. Dile Ram, and C.V. Francis Vs. Union of India (UOI) and Others, . Lastly, it is submitted that once voluntary retirement comes into effect after one month from 06-08-2013, petitioner stood voluntarily retired and there is no question of his transfer thereafter by impugned order.

Per contra, Smt. Nidhi Patankar, supported the impugned order. By taking this Court to various paragraphs of the return, it is submitted that decision on voluntary retirement is yet to be taken and it will be effective only after approval of the competent authority. The transfer order is supported on the basis of judgment of Supreme Court delivered in the case of State of U.P. and Others Vs. Gobardhan Lal, . Interestingly, she also relied on C.V. Francis Vs. Union of India (UOI) and Others, .

I have heard learned counsel for the parties and perused the record.

Before dealing with the rival contentions, it is apt to quote Rule 42 of the Rules, which reads as under:-

Retirement on completion of [20/25 years] qualifying service-[1](a) Government service may retire at any time after completing 20 years qualifying service, by giving a notice in form 28 to 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 (Medical, 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 proviso, 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 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 or, for the period by which such notice falls short of three months, as the case may be.

It is not the case of the respondents that the petitioner is either facing any disciplinary proceeding or criminal case or any such action is contemplated against him. In the text and context of the Rule 42, in my opinion, prior permission of the competent authority is required only in 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.

Even in the contingency (ii) aforesaid, the deemed permission can be presumed if within six months no action is taken.

Rule 42 otherwise nowhere prescribes that express permission is required. In other words, prior permission is not required in cases where contingencies (i) & (ii) aforesaid are not applicable. In fact, the point involved in this case is no more res integra.

This Court after considering judgment of Indra Prakash Bhatnagar (supra), in the case of S.S. Nafde Vs. State of M.P. and Others, , opined as under:-

Once a notice is prescribed Proforma is given, there is a specific bar under sub-rule (2) of Rule 42 of the Rules that the same will not be withdrawn by the Government servant without the approval of the competent authority. This is indicative of the fact that the acceptance of a notice of voluntary retirement is not required or contemplated for full operation of the said notice of voluntary retirement. If no orders are communicated in this respect or if the notice of voluntary retirement is not withdrawn before the date indicated in the said notice of voluntary retirement, it will become automatically operative from the date indicated in the notice of voluntary retirement and the Government servant would retire voluntarily from the date of his choice indicated in the aforesaid notice. For better appreciation, the findings given by this Court in paragraphs 27, 28 and 29 of the report are reproduced hereunder:-

It is, therefore, such a statutory right, indefeasible and absolute in nature that is enshrined in clause (a) of sub-rule (i) of Rule 42 of the Civil Services (Pension) Rules, 1976.

The next factor is the choice of the Government servant of the date of his retirement. Now the first part of clause (a) of sub-rule (i) of Rule 42 says that a Government servant may retire at any time which falls after completing the period of 20 years qualifying service. The second part of clause (a) of sub-rule (i) of Rule 42 gives the Government servant a wide choice. He may choose to retire on the date of his notice. He may also choose to retire on the date of expiry of a period of three months, the beginning of which period is reckonable in accordance with note 2 below sub-rule (i) of Rule 42, or any date within the aforementioned period of 3 months or any date following after a period of 3 months from the date of the giving of the notice under clause (a) but in such a case-understandably-before the date of his superannuation.

Now where a Government servant chooses to retire on the date of sending of the notice under clause (a) or on a date which falls after the date of sending or on a date which falls before expiry of a period of three months, he has to make payment of pay and allowances respectively for a period of three months or for the period by which the notice period falls short of a period of three months in both cases reckoning of the beginning of the period of three months will be done in accordance with note 2, which is the second of the four Notes set out after the end of clause (b) of sub-rule (i) of Rule 42. However, even in these two cases it is the Government servant''s choice of the date of his retirement which determines the date of his retirement under clause (a).

Thus, the allegation made by the petitioner that the notice of voluntary retirement was required to be accepted and then only it would become operative, cannot be accepted.

(Emphasis supplied)

In view of the aforesaid legal position and considering the Rule in hand, it is clear that once a notice of voluntary retirement is given indicating the particular period of time, same will become operative from the date on completion of notice period. Admittedly, in the present case, the notice was given for thirty days. In absence of any rejection within thirty days, it became effective on completion of 30th day. Thus, the petitioner shall be treated to be retired automatically from the said date.

The Apex Court in Tek Chand (supra) opined as under:-

There are three categories of rules relating to seeking of voluntary retirement after notice. In the first category, voluntary retirement automatically comes into force on expiry of notice period. In the second category also, retirement comes into force unless an order is passed during notice period withholding permission to retire and in the third category, voluntary retirement does not come into force unless permission to this effect is granted by the competent authority. In such a case, refusal of permission can be communicated even after the expiry of the notice period. It all depends upon the relevant rules.

The petitioner''s case is covered as per first two categories mentioned above by Supreme Court. Third category is of those cases where permission is required under relevant rules. It is apt to mention here that in Tek Chand (supra), the Apex Court considered Rule 48-A of the Rules. As per sub-rule(A) of the said Rule, the notice of voluntary retirement given under sub-rule(1) shall require acceptance by the appointing authority. [Page 309]. Thus, it depends upon the nature of Rule whether permission is required, deemed permission can be assumed or expressed permission is a condition precedent. In the context of present Rules, it can be safely concluded that no such prior permission or acceptance is required for the reasons stated above.

In C.V. Francis(supra) also, the Apex Court opined on the basis of Rule in hand. In the said case, the Rule appears to be different. Thus, the said judgment has no application.

It is noticed that in the relief clause the petitioner has prayed for a direction to take a decision on his application for voluntary retirement. However, in paragraph 10 of the petition, it is specifically pleaded that the petitioner is deemed to have been retired as per Rule 42 of the Rules. The relief clause is not happily worded. But Court is required to do substantive justice. If the reading of the petition shows the clear nature of relief desired by the petitioner, he cannot be non-suited on hyper-technical grounds.

The Division Bench of this Court in Prakash Chand Jain and another Vs. State of M.P. and others, , opined as under:-

6................... It is well settled in law that a Writ Court can mould the relief clause if the same flows from the facts of the case and the same is not dependent upon any other kind of inference. To put it differently: if the Court is not required to advert to many a complex fact of moulding the relief, the same can always be granted by moulding the relief clause. This is the prerogative of the writ court and this view of ours gets fortified by the decision rendered in the case Nilamani Mishra vs. State of Orissa, 71 (1991) C.L.T. 99 wherein the Chief Justice B.L. Hansaria (as his Lordship then was) held as under:

The next question is relatable to the grant of appropriate relief to the petitioner. In this connection it has been urged by Mr. Mishra that as the petitioner has not specifically prayed for setting aside the approval accorded to the promotion of O.P. No. 4 by the Director of Secondary Education, the promotion in favour of his opposite party cannot be set aside by this Court in the present proceedings. Reference to the prayers as made by the petitioner shows that the first of the same concerns the seniority and the second to the question of recommendation of the name of the petitioner for promotion as the Headmaster and a direction to O.P. No. 2 to approve the same. This shows that there is specific prayer for declaring the promotion of O.P. No. 4 as invalid in the eye of law. But then the petitioner having prayed for an other order or direction which would afford complete relief to him we are of the opinion that merely because of absence of any specific prayer for setting aside the approval of the promotion of O.P. No. 4 to the post of Head Master, this relief may not be denied to the petitioner. In taking this view, we have borne in mind certain decisions of the Apex Court which have held that court have very wide discretion in the matter of framing their writ to suit the exigencies of particular cases and an application cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for. This was the view expressed in Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, . In Sri Satya Narain Singh Vs. District Engineer, P.W.D. and Another, appropriate relief was granted due to changed circumstances and because of the prayer for grant of any other relief to the petitioner. In The State of Haryana Vs. The Haryana Cooperative Transport Ltd. and Others, the mere circumstance of the petitioner not asking for the writ of quo warranto in so many words was not regard as sufficient not to entertain that question, as facts necessary for challenging the appointment in question had been clearly stated in the petition. It was pointed out that the petitioner had invited the Court to issue such other suitable writ (apart from certiorari which was specifically asked for, but which was regarded as inappropriate) as the Court may deem fit and proper. In B.R. Ramabhadriah Vs. Secretary, Food and Agriculture Department, Andhra Pradesh and others, , it was reiterated that the relief should be suitably moulded and it should not be denied as purely technical and narrow procedural grounds.

(Emphasis supplied)

Same view is taken by Special Bench of Five-Judges of this Court in Manoj Kumar Vs. Board of Revenue and Others, . The relevant portion of paragraph 65 reads as under:-

65....................... It has to be borne in mind that the power of the High Court under Article 226 of the Constitution are not confined to prerogative writs inasmuch as it can issue directions, orders, writs and can mould the relief to meet the peculiar requirements. The powers conferred on the High Court under the said Article is of ''wide expanse''. In Director of Settlements, Andhra Pradesh and Others Vs. M.R. Apparao and Another, , it has been held that the power under Article 226 is essentially a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression ''for any other purposes''. The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion they must be exercised along the recognized lines and subject to certain self-imposed restrictions. It is a constitutional power conferred on the High Court to see no man is subject to injustice by violation of law. In exercise of this Article the High Court is expected to erase injustice and not to make justice a bye-product.

(Emphasis supplied)

In Gram Panchayat Vs. State of M.P. and Others, , this Court in paragraph 17 opined as under:-

17........... True it is, prayer in specific terms has not been made to declare that the Panchayat has the right and the Janpad Panchayat does not have the right but when from the pleadings and the relief sought it flows to some extent, I am of the considered view that this Court has the jurisdiction to mould the relief.

In view of the aforesaid, the ends of justice would be met if the relief is suitably moulded by this Court. Resultantly, it is directed that respondents shall treat the petitioner as voluntary retirement on completion of one month''s notice period as per notice dated 06-08-2013. Since the petitioner stood voluntarily retired on the said date automatically, the transfer order passed subsequently on 07-02-2014 is of no consequence. It cannot be passed against a retired employee. Thus, this order dated 07-02-2014 is set aside. Respondents are directed to work out the retiral benefits of the petitioner and pay it to him in accordance with law, within 45 days.

The petitioner is allowed. No costs.