Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Dr. Partha Sanyal on 28 August, 2023
Form No. J (2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WP.ST 172 of 2019
The State of West Bengal & Ors.
Vs.
Dr. Partha Sanyal
For the Petitioners/State: Mr. T.M. Siddiqui, AGP
Mr. S. Adak, Advocates
Heard & Judgement on: August 28, 2023
DEBANGSU BASAK, J.
1. State is aggrieved by an order dated July 22, 2019 passed by the
West Bengal Administrative Tribunal in OA 458 of 2019.
2. By the impugned order, the Tribunal set aside an order of rejection
of the prayer of the writ petitioner for voluntary retirement and directed
the authorities to accept the application of the private respondent for
voluntary retirement dated August 30, 2016 with effect from December 1,
2016.
3. None appears for the respondent.
WP.ST 172 of 2019
4. Learned advocate appearing for the writ petitioner/State relies upon
(2019) 16 SCC 348 [State of West Bengal & Ors. vs. Dr. Tonmoy
Mondal] and submits that, the issue of voluntary retirement in terms of
Note 3 of Rule 75(aaa) of the West Bengal Service Rules, 1971, was
considered by the Hon'ble Supreme Court. The Hon'ble Supreme Court
held that, an application for voluntary retirement in the case of a Doctor
can be considered in the context of public interest and can be rejected by
the State.
5. Learned advocate for the writ petitioner/State relies upon an
unreported decision of a co-ordinate Bench dated November 14, 2022
passed in WP.ST 103 of 2022 [The State of West Bengal & Ors. vs.
Trilokendu Das] and submits that, a prayer for voluntary retirement can
be declined taking aid under Note 3 of Rule 75(aaa) of the West Bengal
Service Rules, 1971.
6. Learned advocate for the State submits that in the facts of the
present case, the private respondent was a Doctor who applied for
voluntary retirement. His application was rejected by the authorities on
the ground of his service being required in public interest. The Tribunal
erred in overturning the decision of the authorities in rejecting the
application for voluntary retirement.
7. From the materials made available on record we find that, the
private respondent joined the services of the State under the West Bengal
Health Service as a medical officer on July 11, 1991. His service was
confirmed by an order dated August 25, 2010 with effect from July 10,
1994.
8. The private respondent made a representation dated August 30,
2016 for voluntary retirement. His prayer for voluntary retirement was
rejected by the competent authority by an order dated January 24, 2017.
WP.ST 172 of 2019
The order of rejection was challenged by the private respondent in OA
1946 of 2018. The Tribunal disposed of OA 1046 of 2018 on January 21,
2019 by setting aside the order of rejection dated January 24, 2017 and
directing fresh consideration by passing a reasoned order. The Additional
Chief Secretary, Health, Government of West Bengal, passed an order
dated April 12, 2019 rejecting the prayer for compassionate appointment.
This order dated April 12, 2019 was assailed in OA 458 of 2019 which
resulted in the impugned order.
9. The application for voluntary retirement is governed by Rule 75 of
the Rules of 1971.
10. Rule 75, particularly, Rule 75 (aaa) in Note 3 thereof, was considered
by the Hon'ble Supreme Court in Dr. Tonmoy Mondal (supra). It was
observed as follows :-
"14. Rule 75(a) deals with the retirement on attaining the
age of superannuation. The expression 'compulsory' retirement
has been wrongly used in the said provision. What is meant by
compulsory retirement probably is that no one to continue in
service after attaining the age of 58 years. The retirement on
attaining the age of superannuation is not a concept of
compulsory retirement as understood in the service
jurisprudence. Be that as it may, the State may be well
advised to amend the Rule.
15. Rule 75(aa) deals with retirement in public interest.
As a matter of fact, the concept of compulsory retirement is the
one which is to be found in Rule 75(aa). It provides that there
is an absolute right with the State Government in the public
interest to retire a person by giving a notice of not less than 3
months in writing or 3 months' pay and allowances in lieu of
such notice.
16. When we come to Rule 75(aaa) of the Rules, it is
apparent that the same deals with the voluntary retirement of a
government employee. Any government employee by giving
notice of not less than 3 months in writing or 3 months' pay
and allowances in lieu of such notice, to the appointing
authority, may retire from government service after he has
WP.ST 172 of 2019
attained the age of 50 years, if he is in Group A or Group B
(erstwhile gazette) service or post and had entered government
service before attaining the age of 35 years, and in all other
cases, after he has attained the age of 55 years, provided that
it shall be open to the appointing authority to withhold
permission to a government employee under suspension who
seeks to retire under this sub-rule.
17. Note 1 to Rule 75(aaa) provides that in computing
the three months' notice period referred to in Rule 75(a) and
(aaa) date of service of the notice and date of expiry shall be
excluded. Note 2 specifically deals with three months' notice
referred in sub-rule (aa) and sub-rule (aaa) that it may be
given before the government employee attains the age
specified in the said sub-rules provided that the retirement
takes place after the government employee has attained the
specified age.
18. However, Note 3 which is relevant is not confined in
operation to sub-rule (aaa) of Rule 75. It is clearly provided in
Note 3 that the appointing authority should invariably keep on
record that in his opinion it is necessary to retire the
government employee in pursuance of the aforesaid Rule in
public interest. Obviously, Note 3 is applicable to both Rules
75(aa) and 75 (aaa) as was rightly opined by the Division
Bench while rendering the judgment and order dated 22-8-
2014."
11. Dr. Tonmoy Mondal (supra) considered (2018) 17 SCC 578
(State of U.P v. Achal Singh) where it was observed that, the concept of
public interest can be invoked by the Government when voluntary
retirement sought by an employee would be against public interest.
12. Dr. Tonmoy Mondal (supra) was considered by the coordinate
Bench in Trilokendu Das (supra). Coordinate Bench noted that the
concept of public interest can be invoked by the Government to decline a
prayer for voluntary retirement by a Government employee. Rule 75(aaa)
of the Service Rule allows the Government to decline the prayer for
voluntary retirement on the ground of public interest.
WP.ST 172 of 2019
13. In the facts of the present case, the application for voluntary
retirement made by the private respondent was rejected by the
Government on the ground of public interest. The factual scenario is akin
to those obtaining in Dr. Tonmoy Mondal (supra) and Trilokendu Das
(supra).
14. In such circumstances, we find that the Tribunal erred in interfering
with the decision taken by the authorities rejecting the prayer for grant of
voluntary retirement in public interest to the private respondent.
15. The impugned order dated July 22, 2019 is set aside. The order of
the authorities dated April 12, 2019 is restored. OA 458 of 2019 is
dismissed.
16. WP.ST 172 of 2019 is allowed without any order as to costs.
(Debangsu Basak, J.)
17. I Agree.
(Md. Shabbar Rashidi, J.)
Dd
