Jharkhand High Court
Dr. Arun Gupta vs The State Of Jharkhand Through The ... on 6 December, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3578 of 2014
----
Dr. Arun Gupta S/o Late Harihar Prasad Shaw, resident of Mohalla
College Road, Pathalchapti, Madhupur, PO PS Madhupur, District
Deoghar (Jharkhand).
... Petitioner
-versus-
1. The State of Jharkhand through the Chief Secretary, Govt. of
Jharkhand, Ranchi, Project Building, Dhurwa, Ranchi.
2. The Secretary, Health, Family Welfare and Medical Education
Department, Govt. of Jharkhand, Project Building, Dhurwa, Ranchi.
3. The Deputy Secretary to the Govt., Health, Family Welfare and
Medical Education Department, Govt. of Jharkhand, Project Building,
Dhurwa, Ranchi.
4. The Civil Surgeon-cum-Chief Medical Officer, Deoghar.
... Respondents
----
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
----
For the Petitioner : Mr. Anjani Kumar Verma, Advocate
For the Respondents : Mr. Mukul Kumar Singh, AC to G.P. III
----
ORDER
RESERVED ON 11.03.2022 PRONOUNCED ON 6.12.2022
Petitioner, in this writ petition, prays for quashing the Notification
as contained in Memo No.509 dated 07.05.2014 (Annexure 5), whereby it has
been notified that the petitioner's application for voluntary retirement has been
accepted and he stands voluntarily retired from service from the date of
issuance of the notification. Further, by way of amendment, prayer has been
made to quash memo No. 873 dated 04.08.2014 (Annexure 11 to the writ
petition), by which petitioner's request for withdrawal of his application for
voluntary retirement has been rejected.
2. The facts lie in a very narrow compass. Petitioner was appointed
as a Medical Officer on the basis of recommendation of Bihar Public Service
Commission. He was posted in Muzaffarpur vide Notification dated
09.02.1998. After bifurcation of the State of Jharkhand, petitioner was allotted
Jharkhand Cadre. The petitioner, on 15.01.2013, applied for voluntary
retirement, which was forwarded by the Deputy Superintendent, Sub Divisional
Officer, Madhupur. His request for voluntary retirement was kept pending as
no information was given to him on his application. Again on 07.09.2013,
petitioner made another request to grant approval for his voluntary retirement.
He received no information from the employer. Ultimately, on 09.04.2014,
petitioner sent a communication indicating that he is withdrawing his request,
which he had made earlier to opt voluntary retirement. The said letter was
received by the Principal Secretary to the Government on 11.04.2014. On
07.05.2014, the first impugned notification was issued, voluntarily retiring the
petitioner from service with effect from the date of said notification, i.e.,
07.05.2014. His application for withdrawal of voluntary retirement was also
rejected by communication dated 04.08.2014 (Annexure 11).
3. Counsel for the petitioner submitted that the petitioner has
withdrawn his application for voluntary retirement prior to the impugned
notification dated 07.05.2014, thus, in view of the well settled principle of law,
his application seeking voluntary retirement should have been treated as
withdrawn. The respondents, ignoring the principle of law, has passed the
impugned order, which needs to be set aside.
4. Counsel for the respondents, by referring to the Counter affidavit,
submitted that the Minister had already approved the application for voluntary
retirement of the petitioner on 26.03.2014, thus, it cannot be said that his
withdrawal was prior to such approval. That being the factual position,
petitioner is not entitled to get any relief.
5. After hearing the parties, I find that the facts are undisputed.
Petitioner applied for voluntary retirement on 15.01.2013 and withdrew the
same vide his application on 09.04.2014, which was received by the
department on 11.04.2014. As per the counter affidavit, the Minister-in-Charge
had approved allowing his voluntary retirement on 26.03.2014 and the
impugned notification is dated 07.05.2014.
6. The Hon'ble Supreme Court in the case of Union of India versus
Wing Commander T. Parthasarathy reported in (2001) 1 SCC 158, at
paragraph 6 thereof, considering the earlier judgment of the Hon'ble Supreme
Court in Union of India versus Gopal Chandra Mishra, especially at
paragraph 50, has held that resignation can be withdrawn at any time before it
becomes effective and it becomes effective when it operates to terminate the
employment or the office tenure of the resigner. It has been further held that
normally, the tender of resignation becomes effective and the service/or office
tenure terminated when it is accepted by the competent authority.
7. In the instant case, the application for voluntary retirement was
submitted by the petitioner on 15.01.2013 and withdrew the same vide his
application on 09.04.2014, which was received by the department on
11.04.2014. Further, though the Minister-in-Charge has approved request for
voluntary retirement of the petitioner on 26.03.2014, but the same cannot be
said to be acceptance of voluntary retirement, it is only the employer, who can
accept or reject the same. In the instant case, the employer of the petitioner is
State and there has to be acceptance by the State, that is the reason, the
notification accepting the voluntary retirement of the petitioner was issued
under the directions of the Governor of the State on 07.05.2014. For all
practical purpose the date of acceptance of the voluntary retirement, so far as
the petitioner is concerned will be treated to be 07.05.2014 and not
26.03.2014.
8. In the case of Bachhittar Singh versus State of Punjab and
Another reported in AIR 1963 SC 395 at paragraph 9 thereof has held that
merely writing something in the file doesnot amount to an order. Before
something amount to an order of the State Government two things are
necessary. The order has to be expressed in the name of the Governor as
required by clause (1) of Article 166 of the Constitution of India and then it has
to be communicated. It has further been held that until such an order is drawn
up the State Government cannot, in our opinion, be regarded as bound by
what was stated in the file. It is necessary to quote paragraph 9 of the said
judgment, which reads as under:-
9. The question, therefore, is whether he did in fact make
such an order. Merely writing something on the file does
not amount to an order. Before something amounts to an
order of the State Government two things are necessary.
The order has to be expressed in the name of the Governor
as required by clause (1) of Article 166 and then it has to
be communicated. As already indicated, no formal order
modifying the decision of the Revenue Secretary was ever
made. Until such an order is drawn up the State
Government cannot, in our opinion, be regarded as bound
by what was stated in the file. As long as the matter rested
with him the Revenue Minister could well score out his
remarks or minutes on the file and write fresh ones.
Further, at paragraph 10 in the case of Bachhittar Singh (supra)
it has been held by the Hon'ble Supreme Court that until the order is
communicated to the person affected by it, it would be open to the Council of
Ministers to consider the matter over and over again and, therefore, till its
communication the order cannot be regarded as anything more than
provisional in character.
9. Thus, from the aforesaid judgments also, it is clear that the
approval of the Minister-in-Charge does not come within the purview of the
order of the State as the actual order is dated 07.05.2014, which is much after
the date when the petitioner has submitted his application to withdraw the
request for voluntary retirement.
10. Thus, in view of the aforesaid judgment, I hold that the petitioner
has exercised the right to withdraw his application for voluntary retirement prior
to acceptance by the State, which was well within his right.
11. Considering what has been held above, impugned orders/
notifications as contained in Memo No.509 dated 07.05.2014 (Annexure 5),
and memo No. 873 dated 04.08.2014 (Annexure 11 to the writ petition) are
hereby set aside. Respondents are directed to take appropriate steps in
respect of posting of the petitioner if he has not attained the age of
superannuation by now.
12. This writ petition stands allowed with the aforesaid observations
and directions.
(Ananda Sen, J.)
Kumar/Cp-02
