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The Supreme Court today held that whether voluntary retirement is automatic or an order is required to be passed to effect the same would depend upon the phraseology used in the particular rule under which retirement is to be ordered or voluntary retirement is sought.
The factual position of each and every case has to be seen along with applicable rules, a Bench of Justices Arun Mishra and S Abdul Nazeer ruled in the case of State of Uttar Pradesh v. Achal Singh.
The case was an appeal filed by the State against a judgment of Allahabad High Court allowing the writ petitions filed by the respondents seeking voluntary retirement from Government services.
The respondents were three doctors working in Government department. They had sought voluntary retirement. The applications remained unattended and no order had been passed, hence writ petitions were filed in the High Court. The High Court allowed the writ petitions and treated the doctors to have retired voluntarily. This led to the appeal in Supreme Court.
The main question for consideration before the Supreme Court was whether under Rule 56 of the Uttar Pradesh Fundamental Rules (Fundamental Rules) as amended, an employee has unfettered right to seek voluntary retirement by serving a notice of three months to the State Government or whether the State Government under the Explanation attached to Rule 56 of the Fundamental Rules, is authorised to decline the prayer for voluntary retirement in the public interest under clause (c) of Rule 56 of the Fundamental Rules.
The Court proceeded to analyse Rule 56.
Reading of the aforesaid rule makes it clear that an employee can be retired by the Government after he attains the age of 50 years or Government servant may voluntarily retire at any time after attaining the age of 45 years or after he has completed qualifying service of 20 years under Rule 56(c), the Court noted.
The Court also observed that it is provided in the Rule 56 that Government may retire a Government servant without any notice or by serving a shorter notice and on such retirement, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of notice or for the period it falls short of three months at the same rates at which he was drawing immediately before his retirement.
It is also open to the Government to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice. The proviso to Rule 56(d) makes it clear that the notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority and provided that in case of a contemplated disciplinary proceeding, the Government servant shall be informed before the expiry of the notice that it has not been accepted.
It is also provided that once a notice is given by a Government servant seeking voluntary retirement it shall not be withdrawn by him except with the permission of the appointing authority.
The explanation attached to Rule 56 makes it clear that the decision of the appointing authority under clause (c) of Rule 56 to retire a Government servant shall be taken if it appears to be in public interest. The explanation is applicable to both the exigencies viz., when Government retires an employee or when an employee seeks voluntary retirement, not only when Government desires to retire an employee in public interest.
The court then proceeded to make the all-important observation that whether voluntary retirement is automatic or an order is required to be passed would depend upon the phraseology used in a particular rule under which retirement is to be ordered or voluntary retirement is sought.
“The factual position of each and every case has to be seen along with applicable rules while applying a dictum of the Court interpreting any other rule it should be Pari Materia (sic)”, it stated.
In the instant case the court held that under Rule 56 as applicable in the State of Uttar Pradesh, notice of voluntary retirement does not come into effect automatically on the expiry of the three months period. Under the rule in question, the appointing authority has to accept the notice for voluntary retirement or it can be refused on permissible grounds.
“In our opinion, the Rule 56(c) does not fall in the category where there is an absolute right on the employee to seek voluntary retirement.”
The Court also noted the fact that there is a paucity of doctors and the system cannot be left without competent senior doctors.
“Poorest of the poor obtain treatment at the Government hospitals. They cannot be put at the peril, even when certain doctors are posted against the administrative posts…Somebody has to man these administrative posts also, which are absolutely necessary to run the medical services which are part and parcel of the right to life itself.”
In case all the doctors are permitted to retire, there would be a chaos and no doctor would be left in Government hospitals, which would be against the concept of the welfare state and injurious to public interest, the Court ruled.
The Court, therefore, held that in view of the scarcity of the doctors and the unfortunate privatisation and commercialisation of the noble medical profession, for maintaining the efficiency of the State Medical Services, the decision taken by the Government is permissible as per rules and cannot be interfered with.
Read the judgment below.