Dr. Durgesh Rathi vs State Of M.P. Through Department ...
2021 Latest Caselaw 3090 MP

                                     - : 1 :-
                                                                W.P. No.13815/2020

     HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
       (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                           W.P. No. 13815 of 2020
Petitioner :                             Dr. Durgesh Rathi.
                            V/s.
Respondents :                            State of M.P. & another.



                    Shri L.C. Patne, Advocate for the petitioner.
               Shri Amit Raj, Panel Advocate for respondents/State.


                                   ORDER

(Passed on 08.07.2021) Petitioner has filed the present petition being aggrieved by the order dated 09.09.2020 whereby the respondents have rejected his application submitted for voluntary retirement from the service .

2. The petitioner was appointed on the post of Insurance Medical Officer by order dated 15.05.1989. Vide order dated 12.09.1992 he was confirmed into the service. After rendering 30 years of qualifying service he submitted an application on 12.12.2019 in a prescribed format i.e. Form-28 under Rule 42(1)(a) of the M.P Civil Services (Pension) Rules, 1976 ( for short 'the Rules of 1976') seeking voluntary retirement from service. The application was forwarded by the Director, ESIC to the Secretary, Labour Department with the endorsement that no show cause notice/disciplinary proceedings or recovery are pending against the petitioner. The period of notice had expired on 29.02.2020 but by that time the Government has imposed the ESMA Covid-19 in the State . Vide letter dated 27.07.2020 the petitioner sent a reminder to the Secretary and requested for issuance of necessary orders. Vide impugned order dated 09.09.2020 the State Government has rejected the applications of the petitioner and 4 other doctors due to applicability of ESMA Covid- 19 in the State .

3. Being aggrieved by the aforesaid order the petitioner has filed the

- : 2 :-

W.P. No.13815/2020

present petition challenging the impugned order inter alia on the ground that this Court in the case of Dr.Ashish Kumar Pal vs. State of M.P & others (W.P.No.4127/2014 decided on 14.10.2014) has held that it is the volition and choice of the government servant to seek voluntary retirement after completing 20 years of service by giving 3 months' notice and this notice would come into operation after the expiry of 3 months automatically and the relationship of master and servant would come to an end on completion of notice period by unilateral act. It is further submitted that ESMA Covid-19 came into force w.e.f 08.04.2020 and the notice period of the petitioner had already expired on 29.02.2020, therefore, the application of the petitioner has wrongly been rejected on the ground of applicability of ESMA Covid-19, the respondents be directed to settle the retiral dues treating the petitioner retired from service w.e.f. 29.02.2020.

4. After issuance of notice, the respondents have filed the reply by submitting that the services of the Doctors are required during this Covid- 19 epidemic, therefore, the State Government has rejected the application for voluntary retirement of the petitioner and called upon him to join the duties by issuing notices dated 09.09.2020 & 24.09.2020. It is further submitted that during this Covid epidemic period there is scarcity of Doctors and Medical Officers, and the process of new appointments will take long time, therefore, in these critical circumstances of Covid condition the Government has decided to reject the application for VRS by the Doctors.

5. The petitioner has filed an application for interim relief because vide notice dated 24.09.2020 the respondent No.2 has called upon him to join the duties, failing which disciplinary action shall be initiated. The said application came up for hearing before this Court on 22.02.2021. After hearing the parties this Court has rejected the application and directed the petitioner to join the duties and work. Against the said order the petitioner preferred a writ appeal No.247/2021. By order dated 17.06.2021 the appeal has been disposed of by requesting the writ Court to decide the matter which involves a short point and directed the Registry

- : 3 :-

W.P. No.13815/2020

to list the petition before the Court on 01.07.2021 and further directed not to take any coercive action pursuant to the order dated 9.9.2020 till the matter is decided finally by the Single Bench. Despite the direction issued on 22.02.2021 the petitioner did not join the duties to work especially during this Covid-19 epidemic period when the services of the Doctors were in need in this country. Learned Panel Lawyer has informed this court that except the petitioner all the four other Doctors whose applications for VRS were also rejected on 09.09.2020 have joined their duties and performing the duties. Now the Government has accepted the application of Dr.Smt.Bangeria.

6. Mr. L C Patne learned counsel appearing for the petitioner has placed strong reliance over the judgments passed by this Court in the case of Ruksana Begum Siddiqui vs. State of M.P & others reported in 2009 (5) MPHT 74; Dr.Ashish Kumar Pal vs. State of M.P & others (W.P.No.4127/2014 decided on 14.10.2014); Dr.Nagion Chandra Jain vs. State of M.P & others (W.P No.8484/2014 decided on 21.11.2014) & Dr.Bharat Singh Chauhan vs. State of M.P & others (W.P.No.6549/2015 decided on 22.9.2015) in which the similar controversy has been resolved by considering the provisions of section 42 (1)(a) of the Rules of 1976 which does not require corresponding acceptance of appointing authority and it a unilateral act of the government servant to quit the Government service at his will after rendering the minimum service.

7. After the aforesaid verdict given by this court, a similar issue about voluntary retirement application submitted by the doctors in the State of UP came up before the Apex Court in the case of State of Uttar Pradesh and others vs. Achal Singh reported in (2018) 17 SCC 578 in which the Apex Court has held that the concept of public interest can also be invoked by the Government when the voluntary retirement sought by the employee would be against the public interest because there is already paucity of doctors and the system cannot be left without competent senior persons, secondly the poorest of poor obtains treatment at the Government hospitals and thirdly where the right of public is involved in obtaining

- : 4 :-

W.P. No.13815/2020

treatment the State Government can take a decision to decline the prayer for voluntary retirement, hence it cannot be said that the State has committed an illegality or the decision suffers from any vice or arbitrariness. The Apex Court has also observed that in the State of Tamil Nadu the Government has amended the rules not to retire Government doctors if there is any scarcity of doctors and it is open for the Government of Uttar Pradesh to amend its rules.

8. The aforesaid findings have been given by the Apex Court considering the provisions of Fundamental Rule (FR)-56 as amended in the State of Uttar Pradesh. The language of FR 56 is pari materia to the language of Rule 42 of the M.P Civil Services (Pension) Rules, 1976. Both Rules are reproduced below:

Rule 56 of the Fundamental Rules as Rule 42 of the M.P Civil Services amended in the State of U.P (Pension) Rules, 1976 "56.(a) Except as otherwise provided in [42. Retirement on completion of 2[20/25 this Rule, every Government servant years] qualifying service.- other than a Government servant in [(1) (a) Government servant may retire inferior service shall retire from service at any time after completing 20 years on the afternoon of the last day of the qualifying service, by giving a notice in month in which he attains the age of form 28 to the appointing authority at fifty eight years. He may be retained in least one month before the date on which service after the date of compulsory he wishes to retire or on payment by him retirement with the sanction of the of pay and allowances for the period of Government on public grounds which one month or for the period by which must be recorded in writing, but he must the notice actually given by him falls not be retained after the age of 60 years1 short of one month: except in very special circumstances. Provided that this sub-rule shall not apply

(b) A Government servant in inferior to the Government servants mentioned in service shall retire from service on the brackets against each of the following afternoon of the last day of the month in Departments, until they have not completed which he attains the age of sixty years. 25 years qualifying service:- He must not be retained in service after (a) Public Health & Family Welfare that date, except in very special Department (Medical, Paramedical & circumstances and with sanction of the Technical Staff);

Government.                                   (b) Medical Education Department
(c) Notwithstanding anything contained        (Teaching Staff, Paramedical & Technical

in clause (a) or clause (b), the appointing staff):

authority may, at any time by notice to Provided further that such Government any Government servant (whether servant shall not be allowed to retire from permanent or temporary), without service without prior permission in writing assigning any reason, require him to of the appointing authority under the retire after he attains the age of fifty following circumstances:-

years or such Government servant
may by notice to the appointing               (i) Where the Government servant is under
authority voluntarily retire at any           suspension;
time after attaining the age of forty         (ii) Where it is under consideration of the
five years or after he has completed          appointing      authority   to     institute
                                         - : 5 :-
                                                                         W.P. No.13815/2020

qualifying service of twenty years.           disciplinary action against the Government
(d) the period of such notice shall be        Servant:
three months:                                 Provided also that if the appointing
Provided that -                               authority has not taken the decision under
i) any such Government servant may by         clause (ii) of the second proviso, within six
order of the appointing authority,            months from the date of notice given by the
without such notice or by a shorter           Government servant with regard to such
notice, be retired forthwith at any time      disciplinary action it shall be deemed that

after attaining the age of fifty years, and the appointing authority has allowed to on such retirement the Government such Government servant to retire from servant shall be entitled to claim a sum service on the date after expiry of the equivalent to the amount of his pay plus period of six months.] allowances, if any, for the period of the (b) The appointing authority may in the notice, or as the case may be, for the public interest require a Government period by which such notice falls short servant to retire from service at any time of three months, at the same rates at after he has completed 20 years qualifying which he was drawing immediately service or he attains the age of 50 years before this retirement; whichever is earlier with the approval of

(ii) it shall be open to the appointing the State Government by giving him three authority to allow a Government servant months notice in Form 29: to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice:

Provided further that such 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, provided that in the case of a contemplated disciplinary proceeding the government servant shall be informed before the expiry of his notice that it has not been accepted.

9. As per Rule 42(1)(a) of the Rules of 1976 a government servant may retire from service at any time after completing 20 years qualifying service (for medical practitioner 25 years qualifying service) by giving a notice in form-28 to the appointing authority at least one month before the date on which he wishes to retire or on payment by him of pay and allowances for the period of one month. As per the second proviso a Government servant shall not be allowed to retire from service without prior permission in writing of the appointing authority where the Government servant is under suspension or where it is under consideration of the appointing authority to initiate a disciplinary proceeding against him. The third proviso says that if the appointing

- : 6 :-

W.P. No.13815/2020

authority has not taken decision under clause (2) of the second proviso within 6 months from the date of notice it shall be deemed that the appointing authority has allowed to such Government servant to retire from service on the date after expiry of the period of six months. In the present case the petitioner is neither under suspension or it is not under consideration of the appointing authority to institute a disciplinary action against him, therefore according to the petitioner after expiry of one month no formal acceptance is required by the appointing authority and he is deemed to have been retired after completion of one month.

10. Likewise sub clause (c) of Fundamental Rule 56 as amended in the State of UP also provides that a Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of 45 years or after he has completed the qualifying service of 20 years and the period of such notice shall be 3 months and as per second proviso such notice given by the Government servant against whom the disciplinary proceeding is pending or contemplated shall be effective only if it is accepted by the appointing authority provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted, therefore, except the period of notice there is no difference and both the provisions of FR-56 and Rule 42 of the Rules of 1976 are identical. The Apex Court in the case of Achal Singh (supra) has held that Rule 56(c) does not fall in the category where there is an absolute right on the employee to seek a voluntary retirement. Para-34 to 42 of the said judgment are reproduced below:

34. The concept of public interest can also be invoked by the Government when voluntary retirement sought by an employee, would be against the public interest. The provisions cannot be said to be violative of any of the rights. There is already paucity of the doctors as observed by the High Court, the system cannot be left without competent senior persons and particularly, the High Court has itself observed that doctors are not being attracted to join services and there is an existing scarcity of the 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. It is not that they have been posted against their seniority or to the other cadre. 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 the

- : 7 :-

W.P. No.13815/2020

instant case, where the right of the public are involved in obtaining treatment, the State Government has taken a decision as per Explanations to decline the prayer for voluntary retirement considering the public interest. It cannot be said that State has committed any illegality or its decision suffers from any vice of arbitrariness.

35. The decision of the Government cater to the needs of the human life and carry the objectives of public interest. The respondents are claiming the right to retire under Part III of the Constitution such right cannot be supreme than right to life. It has to be interpreted along with the rights of the State Government in Part IV of the Constitution as it is obligatory upon the State Government to make an endeavour under Article 47 to look after the provisions for health and nutrition. The fundamental duties itself are enshrined under Article 51(A) which require observance. The right under Article 19(1)(g) is subject to the interest of the general public and once service has been joined, the right can only be exercised as per rules and not otherwise. Such conditions of service made in public interest cannot be said to be illegal or arbitrary or taking away the right of liberty. The provisions of the rule in question cannot be said to be against the Constitutional provisions. In case of voluntary retirement, gratuity, pensions, and other dues etc. are payable to the employee in accordance with rules and when there is a requirement of the services of an employee, the appointing authority may exercise its right not to accept the prayer for voluntary retirement. In case all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest. In the case of voluntary retirement, there is a provision in Rule 56 that a Government servant may be extended benefit of an additional period of five years then an actual period of service rendered by him there is the corresponding obligation to serve in dire need.

36. It was urged that in the State of Tamil Nadu, Government has amended the rules not to retire Government doctors, if there is any scarcity of doctors it is open to the Government of Uttar Pradesh to amend its rules. In India, the Government sponsored Medical Services to cater to the needs of poorest of the poor and have nots otherwise there is the commercialisation of the charitable medical profession. In other States too, it is seen sometime that when a doctor is transferred from one place to another, the doctor forwards application resigning from the post or seeks voluntary retirement as he does not want to move out and leave his lucrative private practice and joins the duty only when he obtains posting back to the place of his choice. In such a scenario people cannot be deprived of the services of good doctors. 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. Unfortunately, the High Court has given the aforesaid observations pointing out the shortage of specialised doctors and at the same time has ultimately decided against the State Government on wrong interpretation without considering the Explanation attached to Rule 56 applicable in the State of Uttar Pradesh. The preface given by the High Court is just opposite to its conclusion. The High Court ought to have rejected and not to allow the prayer of voluntary retirement made by the doctors.

37. It was urged that some of the doctors suffered from neck pain etc. as

- : 8 :-

W.P. No.13815/2020

such prayer ought to have been accepted but they have not given any such serious ailments which may make their functioning in the hospital difficult in any manner whatsoever. It was the pretext that was used by them to seek voluntary retirement. It is for the Government to consider the efficacy. Doctors too have right under the Rights of Persons with Disabilities Act, 2016, they can continue in services unfettered by such ailments.

38. Under Article 47 it is the duty of the State to improve the public health, which is a primary duty under the Directive Principles of the State Policy and the statutory expression which may be enforced. When we consider Article 51A containing Fundamental Duties, it is a duty of every citizen under Article 51A(g) to have compassion for living creatures and to have humanism is also contemplated under Article 51A(h) and to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavours and achievement. It cannot be done by depriving poorest of the poor essential medical services and to leave them at the mercy of doctors. There cannot be an exodus from the Government Medical Services at large, which is being projected in the instant case, definitely this cannot be permitted to happen within four corners of law as it has to be living organism and has to live up to the essence and spirit of constitution and cannot ignore and overlook needs of poorest strata of the society.

39. It was urged that the State Government is discriminating between the doctors in the Provincial Medical Services with the doctors working in the State owned Hospitals and Medical Colleges. In the Medical Colleges etc. doctors are being permitted to retire. Instances of 7 doctors have been given, who were permitted to retire in 2016, 2017 and 2018. Doctors of Medical Colleges are on a different footing than that of Provincial Medical Services. Even otherwise in view of the scarcity of the doctors, no ground of equality can be claimed and the doctors of different services form different class, apart from that there is no concept of negative equality that too against the public interest. In case, such a plea is allowed, none may be left to serve public at large.

40. There are several decisions of the High Court, namely, Dr. Anil Dewan vs. State of Punjab, ILR 1 Punjab & Haryana 46; State of Punjab vs. Dr. Harbir Singh Dhillon, 2010 SCC Online P&H 6159 and Dr. Kalpana Singh vs. State of Rajasthan, (2014) SCC Online Raj 6253, were cited to show that the decision in Dinesh Chandra Sangma (supra) had been followed. We have considered the aforesaid decisions and we find that it would depend upon the scheme of the Rules. Each and every judgment has to be considered in the light of the provisions which came up for consideration and question it has decided, language employed in the rules, and it cannot be said to be of general application as already observed by this Court in State of Haryana (supra).

41. It was also contended that the State of Uttar Pradesh may amend rules, in our opinion there is no such necessity in view of the Explanation the State has already amended its rules so as to enable it to pass an order with respect to retirement whether it is at the instance of the Government or at the instance of the employee for both the public interest is germane.

42. The submission was also made with respect to the imposition of moratorium period of one year on retirement and that there should be the recruitment of the doctors and thereafter acceptance of voluntary

- : 9 :-

W.P. No.13815/2020

retirement by the State. We do not propose to venture into it. The action of the State Government was appropriate in disallowing the prayer seeking voluntary retirement. The Government may fill the vacancies if any. But that would not bring doctors of experience at senior level and exodus of doctors cannot be permitted to weaken the services when the public interest requires to serve for the sake of efficient medical profession and fulfil Directive Principles of State 40 Policy once they found statutory expression in the rules cannot be made mockery. When services are required, denial of voluntary retirement is permissible under the Rules applicable in the State of Uttar Pradesh.

11. In the first and second wave of covid-19 epidemic large number of people, doctors and paramedical staff have expired in this country. A third wave of mutated covid delta variant is expected in August or September this year. It is also not in dispute that there is a paucity of doctors in Government as well as private hospitals. The Government had to take a decision to impose ESMA under the Madhya Pradesh Atyavashyak Seva Sandharan Tatha Vichchinnata Nivaran Adhiniyam, 1979, therefore, at this stage permitting the petitioner to quit the Government service by way of VRS would not be in public interest. The petitioner is a qualified senior doctor in the ESI hospital where poor labour class takes treatment who cannot afford to go in private hospitals, therefore, the respondents have not committed any error of law in rejecting the application of the petitioner for voluntary retirement, hence the petition is dismissed. However, the petitioner is free to apply for VRS at an appropriate stage in the changed circumstances.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2021.07.08 19:11:41 +05'30'