Dr. Narayan Keshaorao Puranik vs State Of Maharashtra, Through ...
2007 Latest Caselaw 394 Bom

JUDGMENT

A.H. Joshi, J.

Page 1085

1. In this petition, Rule was issued with notice on interim relief by order dated 1-8-2006. Since the petition could not be heard on interim relief, the petitioner has filed Civil Application No. 1925 of 2007 for grant of provisional pension.

2. The Civil Application No. 1925 of 2007 was listed on board, and was opposed by the respondents by filing affidavit. Hearing on Civil Application was adjourned twice, and on 12-4-2007 after hearing for some time, it became clear that petitioner's entitlement of interim relief depended upon construction of 1st proviso to Sub-rule (2) of Rule 66 of Maharashtra Pension Rules, and, therefore, it was conceded by both sides that it would be proper to hear the petition on merits instead of personal hearing.

3. This Court, therefore, recorded on 12-4-2007 as follows:

1. This petition is taken on board for hearing of Civil Application No. 1925 of 2007.

2. We find that the point involved is about construction of Rule 66 of Maharashtra Civil Services (Pension) Rules, 1982.

3. In the midst of hearing, this Court found that the point involved for the decision of Civil Application and the Writ Petition is one and the same namely whether clear three months notice to the appointing authority would mean three months from the date of appointing authority's receives the notice.

4. Learned AGP prays for time to lay hands to find out if there is any case law on this point.

5. We adjourn the hearing to Monday i.e. on 16-04-2007 for final disposal of the writ petition on the request of the learned AGP Mr. Fulzale.

6. Parties are put to notice that the petition would be heard and finally decided on Monday i.e. on 16-04-2007.

7. Petition be listed on board in order matters category in view that we have already spent considerable time for hearing this application, now the writ petition can be taken up for final disposal.

4. At the outset, when the petition was called out for hearing, learned AGP sought time to search if there is any precedent on the point. We, therefore, adjourned the hearing. To day when the case was heard learned AGP pointed out that there is no judgment found on the point in issue.

5. It would be convenient to refer to the facts which are very brief as under:

[a] The petitioner had joined as a Doctor in Class-II in the Health Department of respondent No. 1 on 7-9-1983, and he was thereafter, promoted as Class-I on 26-3-2001.

Page 1086

[b] The petitioner has undergone a qualifying service of 21 years 3 months and 24 days, and he had, therefore, decided to seek voluntary retirement from the services of respondent No. 1 and had, therefore, issued a notice of voluntary retirement on 1-1-2005 to the appointing authority through proper channel.

[c] The respondent No. 2 forwarded the said notice to the Deputy Director of Health Services, Akola along with the Certificates, as such No inquiry certificate, no dues certificate, certificate of continuous service, a certificate showing the leave at the credit of the petitioner and a Chart showing leave availed by the petitioner That on 11-11-2004, the Director of Health Services, Mumbai forwarded the case of the petitioner to the respondent No. 1 along with his favourable recommendation.

[d] The respondent No. 2 on 18-12-2004 issued a letter to respondent No. 1 and by the said letter it was requested by the respondent No. 2 to the respondent No. 1 that the orders in respect of the voluntary retirement of the petitioner may be issued prior to 2.1.2005. That on 31-12-2004 the petitioner sent a letter to the respondent No. 2 that as per Rule 66 of the Pension Rules, he has not been informed of refusal of his notice of voluntary retirement, and that he will stand retired on 1.1.2005. According to the petitioner, the respondent No. 2 orally told the petitioner that he should hand over the charge to Dr. Ravindra Pande, who was working in the same Rural hospital, where the petitioner was working as Medical Superintendent, which he did on 1-1-2005. On 2-2-2005, the petitioner had submitted his pension case in 3 copies to the respondent No. 2. The respondent No. 2 on 9-2-2005 along with letter forwarded the pension case of the petitioner to the Deputy Director of Health Services Akola.

[e] On 17-2-2005, the petitioner has received a letter from the respondent No. 2 informing the petitioner that the proposal for voluntary retirement was rejected by the respondent No. 1 with no reasons. Aggrieved thereby petitioner preferred an application before the Maharashtra Administrative Tribunal at Nagpur bearing O. A. No. 84 of 2005. The Maharashtra Administrative Tribunal decided the Original Application No. 84 of 2005 filed by the Petitioner holding that the notice is not in consonance and compliance of the provisions of Rule 66 of Pension Rules, and therefore, has rejected the O. A. filed by the petitioner.

[f] It is seen that the petitioner's challenge before the Maharashtra Administrative Tribunal, where he lost the case, while rejecting the Original Application, Tribunal found that the clear notice of 3 months was required to be given to appointing authority. In the present case, as found by the Tribunal, though the notice was addressed to the appointing authority, it was delivered to the immediate Superior Officer, and thus, the competent authority did not have clear three months from the notice. Hence, the petitioner preferred Writ Petition challenging the impugned order passed by the MAT on 7.3.2006 in O. A. No. 84 of 2005.

Page 1087

6. Learned Advocate Mr. Vaidya urged that if the scheme of modalities of submission of notice of retirement, as seen from the Government Circular issued by the Directorate of Health Services which is at Annexure-4, page 57, is seen, it is apparent that the notice is required to be furnished through proper channel, and the Controlling Officer had to furnish all other details required to be accompanied to such notice. Moreover, it is a common practice, and knowledge that all communications to be addressed to the Higher Officers, are to be sent through proper channel i.e. immediate superior Officer.

7. Learned Advocate Mr. Vaidya for the petitioner urged that it reveals from plain reading of Rule 66 that notice is to be given to appointing authority, however, words clear notice of 90 days etc. are not appearing in said rule. This rule also does not exclude normal procedure of addressing all communications to the superiors through proper channel, and urged that Hon'ble Maharashtra Administrative Tribunal proceeded on totally erroneous perception and interpretation of Rule 66 by importing technicalities not available under the scheme.

8. In the present case, it is not in dispute that the notice of retirement under Rule 66 was furnished by the petitioner on 1-10-2004, and was duly acknowledged by the Office of Civil Surgeon, and he, in turn, furnished the entire relevant details to Higher Officer i.e. the Dy. Director, Health Services, Akola by his letter dated 4 10-2004. The Dy. Director, in turn, furnished all details through his letter dated 25-10-2004, and the Director, Medical Services, in turn, submitted it to the Additional Chief Secretary by letter dated 11-11-2004. It is admitted fact that the decision not to allow the petitioner to retire was taken on 5-1-2005 i.e. after three months of submission of the notice by the petitioner.

9. In the background that the MAT found that the competent authority had at its disposal duration of only one month and nineteen days, and thus, the proviso was not attracted. Therefore, now the question that arises for consideration of this Court is, as formulated by this Court in its order dated 14-4-2007, namely whether the notice of three months contemplated by Rule 66 should be .clear" notice of three months to the appointing authority. By essential corollary, one more question arises namely whether three months should be counted from the date of notice actually reaches to the competent authority. The respondents had placed reliance before the Maharashtra Administrative Tribunal on the following reported judgments namely:

[1] (1994) 4 SCC 356 Jeevanlal Ltd. and Ors. v. Appellate Authority under Payment of Gratuity Act and Ors.

[2] Pratap Singh v. State of Jharkhand and Anr. accepted argument of the State that the rule prescribing 90 days notice to appointing authority meant clear 90 days (3 months) notice when application/notice actually reaches the appointing authority. In this Court as well as learned AGP supported these submissions. State wants Rule 66 to be read and interpreted with strict interpretation as was urged.

Page 1088

10. We have gone through these judgments, and we are unable to subscribe to the interpretation reached by the Tribunal. The Tribunal has tried to read into Rule 66, the word clear 3 months notice to the appointing authority., which is not the scheme of the said rule. Inclusion of such text and importing said interpretation would amount to infusing or adding words presence whereof cannot be felt by adverting to the scheme i.e. surrounding rules. We find that absence of words clear 90 days notice (3 months) to appointing authority is in a legislative act of omission done with all legislative wisdom, which is liable to be classified as conscious omission, and should be respected.

11. We hold that the construction of provisions for reading the strictness of clear 90 days notice as done by the Tribunal is, therefore, reading in the provision of law, a non existing text, and such reading is not a necessity for advancement of the cause and objects underlying provisions. Had it been the intent of the rule making authority, omission which is now sought to be filled in the MAT, would not have been left in the said state. We, therefore, disapprove the interpretation reached by the MAT, and hold that the submission of the notice to the immediate superior officer though addressed to the appointing authority is sufficient compliance, and the period of 90 days shall be counted from the date of submission of notice to immediate superior.

12. We further find that in 2006 (5) Mh.L.J. 133 Nilkanth S/o Ramji Akarte v. State of Maharashtra and Ors. this Court has directed the benefit of voluntary retirement to be given to the Government Servant concerned was a medical personnel in the Government Medical College, Yeotmal. True it is that the question as to notice of clear 3 months had not fallen for consideration. We find that the refusal of request of voluntary retirement was set aside by this Court and he was allowed to retire voluntarily.

13. We, therefore, allow the petition, and set aside the judgment of the Maharashtra Administrative Tribunal impugned, and direct that the petitioner's proposal/notice for voluntary retirement be accepted, and he shall be permitted to retire from the date of completion of three months from which date, on which he was actually retired. The petitioner shall be entitled for fixation of pension according to the rules.

14. Learned Advocate for the petitioner urged that he has been without pension for the last three years. According to him, as per the policy of the Government of awarding the interest on delayed arrears of pension, the petitioner is entitled for the same. We direct that the petitioner shall be paid interest on delayed payment as per the Government's existing policy. The payment of arrears and commencement of regular pension shall be done within three months from today.

15. Rule is made absolute in terms of para 13 & 14. In the circumstances, however, the parties shall bear respective costs.