Smt. Suneeta Singh And Another vs State Of U.P. And 2 Ors
2022 Latest Caselaw 4668 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on - 11.4.2022
 
Delivered on - 31.5.2022
 
Court No. - 66
 

 
Case :- WRIT - A No. - 48790 of 2014
 
Petitioner :- Smt. Suneeta Singh And Another
 
Respondent :- State Of U.P. And 2 Ors
 
Counsel for Petitioner :- Ajay Rajendra,P.C.Sharma,Sanjeev Singh,Saroj Kashyap
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. The writ petition was filed by petitioner No.1 - Smt. Suneeta Singh and petitioner No.2 - Ashok Kumar Singh (husband of petitioner no.1). During pendency of this writ petition, petitioner no.2 died on 21.8.2018 and a document in this regard is annexed as Annexure No.1 to an affidavit dated 16.1.2019 filed by petitioner no.1, therefore, this writ petition is surviving qua to petitioner no.1 only.

2. The brief facts of present case are that petitioner no.2 while working as a Constable Police in District Jallon become mentally sick and undergone treatment at Mental Hospital, Varanasi and was declared fit by an inspection report of a Panel of doctors on 30.12.2009. Thereafter, he was posted at different places and on 20.11.2012, he submitted an application seeking voluntarily retirement. For reference, the said letter is reproduced hereinafter :-

" सेवा में,

श्रीमान वरिष्ठ पुलिस अधीक्षक

जनपद, वाराणसी।

महोदय,

निवेदन है कि प्रार्थी विगत छः माह पूर्व जनपद जालौन से स्थानान्तरण पर आया है। एवं थाना चेतगंज में तैनात है। प्रार्थी स्वांस रोग व मानसिक रोग का मरीज है। जिसका इलाज चल रहा है। प्रार्थी के आंख से कम दिखाई देता है। जिस कारण प्रार्थी को नौकरी करने में परेशानी हो रही है। प्रार्थी स्वेच्छा से ऐच्छिक सेवा निवृत्त होना चाहता है। प्रार्थी को थाना चेतगंज का पानी शूट नहीं कर रहा है।

अतः श्रीमान जी से नम्र निवेदन है कि प्रार्थी की नियुक्ति पी0पी0 आफिस या पुलिस ऑफिस के किसी भी शाखा में करने की कृपा करें। एवं प्रार्थी का पेंशन शासनादेश के मुताबिक करने की कृपा करें।

श्रीमान जी की महान कृपा होगी।

प्रार्थी

कां. 551 अशोक कुमार सिंह

थाना- चेतगंज

वाराणसी"

3. Petitioner no.1 - wife of petitioner no.2 submitted an application on 16.2.2013 that before taking any decision on the application for voluntarily retirement, an opinion should be obtained about the mental condition of petitioner no.2. However, before the said application was submitted, the application of petitioner no.2 for voluntarily retirement from services was accepted on 15.2.2013. In these circumstances, petitioners approached this Court by way of filing Writ Petition No.20395 of 2013, which was disposed of with following order :-

"Petitioner No. 1, who is the wife of Constable Ashok Kumar Singh and her submission before this Court is that mental condition of her husband is not good and under the aforementioned constrain he has moved an application for voluntary retirement and the same has been accepted by the Senior Superintendent of Police, Varanasi on 15th February, 2013. Immediately, thereafter, petitioner no. 1 has represented the matter before the Deputy Inspector General of Police, Varanasi Region, Varanasi pointing out the mental condition of her husband and then the Deputy Inspector General of Police, Varanasi Region, Varanasi has asked Senior Superintendent of Police, Varanasi to examine the matter from the said point of view. Petitioner submits that, thereafter, no further follow up action has been taken in the said matter by the authority concerned.

Consequently, in the facts of the case, Senior Superintendent of Police, Varanasi, is directed to take further follow up action, as has been mentioned by the Deputy Inspector General of Police, Varanasi Region, Varanasi in his letter dated 20th February, 2013, in accordance with law, preferably within next two months from the date of receipt of certified copy of this order.

With these observations and directions, writ petition stands disposed of."

4. In pursuance of above referred order, representation was rejected by an impugned order dated 18.5.2014.

5. Shri Sanjeev Singh, learned counsel for petitioner has submitted that his husband was not mentally fit to take a correct decision which could be beneficial for his family members. He remained under medical treatment, evident from various medical prescriptions annexed along with writ petition as well as report of the Medical Board. Application of her husband for voluntarily retirement was a conditional one and he has requested that either he might be granted V.R.S. or be allotted lighter duty or position. In pursuance of his request, he was given a lighter duty and posted as a Court Mohrar in the Court. Application for V.R.S. was submitted on 20.11.2012 and thereafter, petitioner no.1 submitted an application dated 16.2.2013 with specific request that before acceptance of V.R.S, it must be considered whether a person not mentally fit was competent to take a decision of voluntarily retirement. However, a day prior, application for voluntarily retirement was accepted on 15.2.2013.

6. Learned counsel also pointed out that when the application for V.R.S. was filed on 20.11.2012, the Senior Superintendent of Police, Varanasi has directed the Circle Officer, Chetganj, Varanasi to submit a report with regard to that whether V.R.S. sought by concerned person was on his own will, however, a report on such query was submitted belatedly. Meanwhile, petitioner no.1 and her husband approached this Court by way of filing a Writ A No.20395 of 2013 (Smt. Suneeta Singh and another vs. State of U.P. and others), which was disposed of with the direction to take a decision on the said letter. It was mentioned in letter dated 9.5.2014 that petitioner no.2 was under treatment for his mental illness.

7. Learned counsel lastly submitted that impugned order dated 18.5.2014 passed by Senior Superintendent of Police, Varanasi whereby representation of petitioner was rejected on the ground that once the request for voluntarily retirement was accepted, the same cannot be withdrawn was wrong as it was passed without taking note of the report that husband of petitioner no.1 was undergoing treatment for his mental illness. In support of his above submission, learned counsel has relied upon a judgment passed by the Division Bench of this Court in Special Appeal No.1188 of 2005 (M/S New Victoria Mills and others vs. Shri Kant Arya), decided on 12.3.2019 wherein the Division Bench has upheld the view taken by learned Single Judge that voluntarily retirement could not have been forced upon petitioner once he has already withdrawn his request before effective acceptance by competent authority.

8. Learned counsel also placed reliance upon a judgment passed by a co-ordinate Bench of this Court in Diwan Singh Bisht vs. Life Insurance Corporation of India; 2005 (3) AWC 2318 that in case a resignation was not submitted in normal course but in drawing circumstances, then it was not worthy of acceptance by employer. In another judgment of a co-ordinate Bench of this Court in Parshu Ram vs. State of U.P. Thru Director of Education and others in Writ A No.26670 of 2003, decided on 29.4.2011, Court has relied upon a judgment passed by the Supreme Court and held that "the question is squarely answered by the three decisions, namely, Balram Gupta v. Union of India & Anr. JT 1987 (3) SC 480: 1987 (Supp) SCC 228, J.N. Srivastava v. Union of India & Anr. (1998) 9 SCC 559, and Power Finance Corporation Ltd. v. Pramod Kumar Bhatia, JT 1997 (4) SC 300: (1997) 4 SCC 280, in which it was held that the resignation, in spite of its acceptance, can be withdrawn before the "effective date".

9. Learned counsel vehemently relied upon a judgment passed by this Court in Radhey Shyam Birla vs. Union of India and others; 2020 (4) ESC 1515 (All) wherein it has been held that 'the conditional resignation is not a valid resignation.'

10. Learned counsel has also placed reliance upon the judgment passed by the Division Bench in Writ A No.7143 of 2018 (Raajveer Singh vs. State of U.P. and Another), decided on 9.1.2019 that in case application seeking voluntarily retirement is vague and not in consonance with Fundamental Rule 56, the same could not be accepted.

11. Shri Rajeshwar Tripathi, learned Standing Counsel for State submits that on the basis of prescriptions that husband of petitioner no.1 was taking treatment at Mental Hospital, Varanasi, could not be considered to be a proof that he was mentally unfit to take a proper decision for his voluntarily retirement rather he was declared mentally fit after treatment and in this regard, certificate was issued by the Mental Hospital, Varanasi on 30.12.2009. Thereafter, there are only prescriptions that he was under treatment before the Mental Hospital, Varanasi, however, no document was on record that he was not mentally fit at the time an application for voluntarily retirement was submitted on 20.11.2012.

12. Learned counsel further submitted that application moved by petitioner no.1 on 16.2.2013 was only to the extent that an inquiry be conducted whether her husband was mentally fit to take a decision to submit an application for voluntarily retirement. The said application was not supported by any document with regard to current condition of her husband.

13. Learned counsel further pointed out that the contents of application mentioned in para 2 of this order could not be considered to be a conditional one as it was specifically stated that he wanted to take voluntarily retirement and be posted in other office and his pension be fixed as per law. He lastly submitted that all the judgments relied by learned counsel for petitioner are distinguishable on facts.

14. Heard learned counsel for parties and perused the record.

15. On the basis of above submissions on facts and law, this Court has to decide whether husband of petitioner (since deceased) was mentally fit to take a decision for his voluntarily retirement when he submitted his application on 20.11.2012 and whether the application for voluntarily retirement was a conditional one and lastly application submitted by petitioner no.1 (wife of petitioner no.2) on 16.2.2013 (after V.R.S. was accepted) could be treated an application to withdraw the application, submitted by his husband.

16. In the present case, various prescriptions of husband of petitioner are annexed along with this writ petition that he was under treatment at Mental Hospital, Varanasi. It appears that earlier he was admitted in the hospital for treatment of his mental illness. However, the Board after inspection and interaction, declared him fit by report dated 23.12.2019 (annexed as Annexure No.4). Subsequent to said declaration, no document except that he was under treatment in the said hospital as well as a report submitted in pursuance of report of Senior Superintendent of Police, Varanasi that he was under treatment to substantiate the argument of learned counsel for petitioner that her husband was mentally unfit to take a reason and conscious decision for his voluntarily retirement was on record. Therefore, the Court is of view that at the time when husband of petitioner had submitted request for voluntarily retirement, in the absence of any document or material, he was not mentally unfit to take a decision for his retirement.

17. The next issue which requires consideration is that whether contents of request submitted by husband of petitioner for his voluntarily retirement was a conditional one? The contents of request are already mentioned in para 2 of this order. In the application, it was specifically mentioned that he on his own will wanted to take voluntarily retirement from the service and for that, he mentioned reasons that he was a patient of shortness of breath as well as of pulmonary disease and mental disease for which he was under treatment. His eye sight was also very weak. Therefore, there was specific reasons for him to sought voluntarily retirement. The second paragraph of request for which contention of learned counsel for petitioner is that it was a conditional request, however from perusal of said part, it appears to be not correct. It was only in continuation of earlier part of the application.

18. In second paragraph of request, petitioner no.2 simply states that he may be appointed in some place under P.P. Office or police office and it was further added that his pension be calculated accordingly. Therefore, the language of aforesaid referred request was that he wanted to take voluntarily retirement as he was under treatment for various ailments and meanwhile, he requested to be posted at a particular place. Therefore, contents of request cannot be considered to be a conditional request.

19. Therefore, the judgment cited by learned counsel for petitioners are not applicable since this Court has came to the conclusion that request for voluntarily retirement was not conditional.

20. Lastly, this Court has to consider whether the application filed by petitioner no.2 that before any decision be taken on the application for voluntarily retirement of her husband, his mental condition to be taken into consideration. This application was filed subsequent to the acceptance of request for voluntarily retirement and was not accompanied by any document from which it could be inferred that he was not mentally fit to take a conscious decision for his voluntarily retirement. In the application, it was also not stated that voluntarily retirement application be withdrawn. He had never submitted any letter to withdraw his request. In these circumstances, respondents' authorities could not even take cognizance on the said application. There is another factor due to which no relief could be granted to petitioner because petitioner's husband has died during the pendency of this writ petition.

21. Therefore, even today, this Court could not take a decision or direct the respondents' authorities to verify the mental condition of petitioner's husband. In this situation, no benefit could be granted to the provisions of Mental Health Care Act, 2017 or Mental Healthcare (Rights of Persons with Mental Illness) Rules, 2018.

22. In view of above discussion, the petition which is surviving qua to petitioner no.1 only fails on every ground as discussed above.

23. In view of above, this writ petition is accordingly, dismissed.

Order Date :- 31.5.2022

Rishabh

[Saurabh Shyam Shamshery, J.]