Madhya Pradesh High Court
Dr. Durgesh Rathi vs The State Of Madhya Pradesh on 23 March, 2022
Author: Subodh Abhyankar
:1: W.A.No. 620/2021
THE HIGH COURT OF MADHYA PRADESH, INDORE BENCH
DIVISION BENCH
Writ Appeal No. 620 of 2021
Dr.Durgesh Rathi
vs.
State of Madhya Pradesh and another
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Coram : Hon'ble Shri Justice Subodh Abhyankar
Hon'ble Shri Justice Satyendra Kumar Singh
Shri L.C. Patne, learned counsel for the appellant.
Shri Aditya Garg, learned Government Advocate for the
respondent/State.
Whether approved for reporting : Yes
JUDGMENT
(Delivered on 23 / 03 / 2022)
Per: Subodh Abhyankar, J.
1. This Writ Appeal has been preferred under Section 2(1) of the
Madhya Pradesh Uchcha Nyalaya (Khand Nyayapeeth Ko Appeal)
Adhiniyam, 2005, against the order dated 8.7.2021 passed by the
learned Judge of the Writ Court in Writ Petition No.13815/2020.
2. The case of the appellant/petitioner before the writ court was that
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 his application on 12.12.2019, seeking voluntary
retirement from service, 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'). The application was forwarded by the
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Director, E.S.I.C. 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
expired on 29.02.2020, but by that time the Government had imposed
Essential Services Management Act, 1968 (hereinafter referred as
ESMA) Covid-19 in the State. Vide letter dated 27.07.2020, hence the
petitioner sent a reminder to the Secretary and requested for issuance of
necessary orders, and vide impugned the 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.
Being aggrieved, the petitioner preferred W.P.No.13815/2020 which
was dismissed by the learned judge of the writ court vide its order
dated 08.07.2021. Hence this Writ Appeal.
3. Shri L.C. Patne, learned counsel for the appellant has submitted
that the contention of the petitioner that as per Sub-rule (1) of Rule 42
of the Rules of 1976, after serving a prior notice of more than 2
months, in the absence of any departmental enquiry as contemplated
under Proviso to Sub-rule (1), it has to 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 Notice did not find favour by
the writ court by placing reliance on a decision rendered by the
Supreme Court in the case of State of Uttar Pradesh & others vs.
Achal Singh reported as (2018) 17 SCC 578. It is submitted by shri
Patne that while drawing parity of the case of the petitioner with that of
a decision rendered by the Supreme Court in the case of Achal Singh
:3: W.A.No. 620/2021
(supra), the learned Judge of the writ court, although quoted Rule 56
of the Fundamental Rules as amended in the State of U.P., but did not
take note of the explanation attached to the aforesaid Rule which is the
distinguishing feature as has also been rendered in para 12 of Achal
Singh's (supra) case. It is submitted that Achal Singh's (supra)
would not be applicable to the petitioner's case in the light of the Rule
42 of the Rules of 1976 which is different from Fundamental Rule
(FR)-56 as amended in the State of Uttar Pradesh. Shri Patne has also
relied upon a decision rendered by the Division Bench of this court in
the case of Dr. Duresh Rathi vs. State of Madhya Pradesh & others
(W.A.No.247 of 2021 dated 17.6.2021) to submit that deeming clause
would be applicable in the case on hand as well.
4. Counsel for the State on the other hand has opposed the prayer
and supported the impugned order.
5. Heard the counsel for the parties and perused the record.
6. On perusal of the record, prima facie it is found that the learned
Judge has quoted Rule 56 -A of the Fundamental Rules as amended in
the State of U.P. Vis-a-vis Rule 46 of the Rules of 1976 but has not
referred to the explanation appended to the Fundamental Rule 56 as
amended in U.P., which has been dealt with by the Supreme Court in
para 11 of Achal Singh's (supra) case. On careful scrutiny of the
impugned order passed by the writ court and the submissions as
advanced by Shri Patne, this court is of the considered opinion that the
learned judge of the writ court erred in holding that the provisions of
Rule 56 -A of the Fundamental Rules as amended in the State of U.P.
:4: W.A.No. 620/2021
are in pari materia with the Rule 46 of the Rules of 1976. The relevant
paras of Achal Singh (supra) read as under:-
"8. In order to appreciate the rival submissions, it is necessary to
consider the Fundamental Rules as amended in the State of Uttar
Pradesh. The same is somewhat different from the rules framed in
other States. Rule 56 of the Fundamental Rules as amended in the
State of Uttar Pradesh, is extracted hereunder:
"56. (a) Except as otherwise provided in this Rule, every
government servant other than a government servant in
inferior service shall retire from service on the afternoon of the
last day of the month in which he attains the age of fifty-eight
years. He may be retained in service after the date of
compulsory retirement with the sanction of the Government on
public grounds which must be recorded in writing, but he must
not be retained after the age of 60 years except in very special
circumstances.
(b) A government servant in inferior service shall retire
from service on the afternoon of the last day of the month in
which he attains the age of sixty years. He must not be
retained in service after that date, except in very special
circumstances and with sanction of the Government.
(c) Notwithstanding anything contained in clause (a) or
clause (b), the appointing authority may, at any time by notice
to any government servant (whether permanent or temporary),
without assigning any reason, require him to retire after he
attains the age of fifty years or such government servant may
by notice to the appointing authority voluntarily retire at any
time after attaining the age of forty-five years or after he has
completed qualifying service of twenty years.
(d) the period of such notice shall be three months:
Provided that--
(i) any such government servant may by order of the
appointing authority, without such notice or by a shorter notice,
be retired forthwith at any time after attaining the age of fifty
years, and on such retirement the government servant shall be
entitled to claim a sum equivalent to the amount of his pay plus
allowances, if any, for the period of the notice, or as the case
may be, for the period by which such notice falls short of three
months, at the same rates at which he was drawing immediately
before his retirement;
(ii) it shall be open to the appointing authority to allow a
government servant 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:
Provided also that the notice once given by a government
servant under clause (c) seeking voluntary retirement shall not
be withdrawn by him except with the permission of the
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appointing authority.
(e) A retiring pension shall be payable and other retirement
benefits, if any, shall be available in accordance with and subject
to the provisions of the relevant Rules to every government
servant who retires or is required or allowed to retire under this
rule.
Provided that where a government servant who voluntarily
retires or is allowed voluntarily to retire under this rule the
appointing authority may allow him, for the purposes of pension
and gratuity, if any, the benefit of additional service of five
years or of such period as he would have served if he had
continued till the ordinary date of his superannuation, whichever
be less;
Explanation.--(1) The decision of the appointing authority
under clause (c) to require the government servant to retire as
specified therein shall be taken if it appears to the said authority
to be in public interest, but nothing herein contained shall be
construed to require any recital, in the order, of such decision
having been taken in the public interest.
(2) In order to be satisfied whether it will be in the public
interest to require a government servant to retire under clause
(c), the appointing authority may take into consideration any
material relating to the government servant and nothing herein
contained shall be construed to exclude from consideration--
(a) any entries relating to any period before such government
servant was allowed to cross any efficiency bar or before he was
promoted to any post in an officiating or substantive capacity or
on an ad hoc basis; or
(b) any entry against which a representation is pending, provided
that the representation is also taken into consideration along with
the entry; or
(c) any report of the Vigilance Establishment constituted under
the Uttar Pradesh Vigilance Establishment Act, 1965.
(2-A) Every such decision shall be deemed to have been taken in
the public interest.
(3) The expression "appointing authority" means the
authority which for the time being has the power to make
substantive appointments to the post or service from which the
government servant is required or wants to retire; and the
expression "qualifying service" shall have the same meaning as
in the relevant rules relating to retiring pension.
(4) Every order of the appointing authority requiring a
government servant to retire forthwith under the first proviso to
clause (d) of this rule shall have effect from the afternoon of the
date of its issue, provided that if after the date of its issue, the
government servant concerned, bona fide and in ignorance of
that order, performs the duties of his office his acts shall be
deemed to be valid notwithstanding the fact of his having earlier
retired."
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11. The Explanation attached to Rule 56 makes it clear that
the decision of the appointing authority under clause ( c) of Rule
56 to retire a government servant shall be taken if it appears to be
in public interest. The Explanation is applicable to both the
exigencies viz. when the Government retires an employee or
when an employee seeks voluntary retirement, not only when
:6: W.A.No. 620/2021
Government desires to retire an employee in public interest. The
Explanation attached to Rule 56 as applicable in the State of Uttar
Pradesh is clear and precise.
12. In our opinion, whether voluntary retirement is automatic
or an order is required to be passed would depend upon the
phraseology used in a particular rule under which retirement is to
be ordered or voluntary retirement is sought. The factual position
of each and every case has to be seen along with applicable rules
while applying a dictum of the Court interpreting any other rule it
should be in pari materia. Rule 56(2) deals with the satisfaction of
the Government to require a government servant to retire in the
public interest. For the purpose, the Government may consider
any material relating to government servant and may requisition
any report from the Vigilance establishment."
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42. There are several decisions of the High Court, namely,
Anil Dewan v. State; State of Punjab v. Harbir Singh Dhillon and
Kalpana Singh v. State of Rajasthan, which were cited to show
that the decision in Dinesh Chandra Sangma 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.
43. 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.
(emphasis supplied)
7. A bare perusal of the aforesaid dictum of the Supreme Court
itself reveals that it was passed while considering the provisions of
Rule 56 of the Fundamental Rules as amended in the State of Uttar
Pradesh and in fact the distinction is drawn by the Supreme Court itself
by observing in para 8 that, 'the same (Rule 56) is somewhat different
from the rules framed in other States'.
8. The various decisions of this court relied upon by the counsel for
the petitioner have been distinguished by the writ court in the following
manner:-
"6. Mr. L C Patne learned counsel appearing for the petitioner
:7: W.A.No. 620/2021
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 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."
(emphasis supplied)
9. So far as the parity drawn by the writ court in the impugned order
regarding Fundamental Rule 56 of UP and Rule 42 of the Rule of 1976
is concerned, the same reads as under:-
Rule 56 of the Fundamental Rules Rule 42 of the M.P. Civil Services
as amended in the State of U.P. (Pension) Rules, 1976
"56.(a) Except as otherwise [42. Retirement on completion of
provided in this Rule, every 2[20/25 years] qualifying service:-
Government servant other than a [(1)(a) Government servant may
Government servant in inferior retire at any time after completing
service shall retire from service on 20 years qualifying service, by
the afternoon of the last day of the giving a notice in form 28 to the
month in which he attains the age of appointing authority at least one
fifty eight years. He may be month before the date on which
retained in service after the date of he wishes to retire or on payment
compulsory retirement with the by him of pay and allowances for
sanction of the Government on the period of one month or for the
public grounds which must be period by which the notice
recorded in writing, but he must not actually given by him falls short of
:8: W.A.No. 620/2021
be retained after the age of 60 years one month:
except in very special Provided that this sub-rule shall not
circumstances. apply to the Government servants
(b) A Government servant in inferior mentioned in brackets against each
service shall retire from service on of the following Departments, until
the afternoon of the last day of the they have not completed 25 years
month in which he attains the age of qualifying service:-
sixty years. He must not be retained (a) Public Health & Family Welfare
in service after that date, except in Department (Medical, Paramedical
very special circumstances and with & Technical Staff);
sanction of the Government. (b) Medical Education Department
(c) Notwithstanding anything (Teaching Staff, Paramedical &
contained in clause (a) or clause (b), Technical Staff):
the appointing authority may, at any Provided further that such
time by notice to any Government Government servant shall not be
servant (whether permanent or allowed to retire from service
temporary) without assigning any without prior permission in writing
reason, require him to retire after he of the appointing authority under the
attains the age of fifty years or such following circumstances:-
Government servant may by (i) Where the Government servant
notice to the appointing authority is under suspension:
voluntarily retire at any time after (ii) Where it is under consideration
attaining the age of forty five of the appointing authority to
years or after he has completed institute disciplinary action against
qualifying service of twenty years. the Government Servant:
(d) the period of such notice shall Provided also that if the
be three months: appointing authority has not taken
Provided that- the decision under clause (ii) of the
i) any such Government servant second proviso, within six months
may by order of the appointing from the date of notice given by the
authority, without such notice or by Government servant with regard to
a shorter notice, be retired forthwith such disciplinary action it shall be
at any time after attaining the age of deemed that the appointing authority
fifty years, and on such retirement has allowed to such Government
the Government servant shall be servant to retire from service on the
entitled to claim a sum equivalent to date after expiry of the period of six
the amount of his pay plus months]
allowances, if any, for the period of
the notice, or as the case may be, for (b) The appointing authority may in
the period by which such notice falls the public interest require a
short of three months, at the same Government servant to retire from
rates at which he was drawing service at any time after he has
immediately before this retirement; completed 20 years qualifying
whichever is earlier with the
ii) it shall be open to the appointing approval of the State Government
authority to allow a Government by giving him three months notice
servant to retire without any notice in Form 29:
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
:9: W.A.No. 620/2021
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.
10. It is apparent that the learned Single Judge has not quoted the
Explanation as provided under 56 of UP Fundamental Rules which is
also quoted by the Supreme Court in Achal Singh's (supra) case and
which have also been reproduced herein above by this court.
11. In such circumstances, this court is of the considered opinion that
the learned judge of the writ court was not right in holding that Rule 56
of UP is in pari materia with Rule 42 of Rules of 1976 and thus, the
distinction as made by the learned judge in para 6 and 7 of its
judgement as reproduced above also does not hold water and cannot be
approved.
12. So far as the decision rendered in the case of State of Madhya
Pradesh vs. Dr. Harendra Jaseja reported in 2014 SCC OnLine MP 5940 is
concerned, while considering the provisions of Rule 42, it has been
held by the Division Bench of this court at Gwalior Bench, as under:-
" In the opinion of this Court sustainability of impugned transfer
order is required to be addressed only if the respondent could be
said to be in service as Associate Professor while being
transferred from Gwalior to Sagar. Respondent/Employee's
application dated 6/8/2013 seeking voluntary retirement with one
month notice was after having qualifying 25 years of service and
therefore the respondent was well within his rights to seek
voluntary retirement immediately after expiry of one month
period as indicated in the prescribed notice dated 6/8/2013.
Undisputedly, respondent is not under suspension. Further, there
is nothing on record to suggest that any matter was under
consideration before the appointing authority to institute
disciplinary action against the respondent, therefore, no
permission was required to accord sanction for voluntary
retirement. Hence, under such circumstances, the voluntary
retirement has come in existence immediately after expiry of one
month period w.e.f. 5/9/2013. There was no employer-employee
relationship between the appellants/State and
:10: W.A.No. 620/2021
respondent/employee. Appellants/State lacked authority while
issuing the impugned transfer order. Learned Single Judge has
elaborately explained the legal position as regard the consequence
flowing from the application submitted by respondent/employee
seeking voluntary retirement and reached to the conclusion that
after expiry of one month notice period, the employer-employee
relationship ceases and therefore no transfer order could be
issued.
As such, no illegality is found in the order passed by learned
Single Judge.
Appeal is hereby dismissed as bereft of merits."
(emphasis supplied)
13. The Special Leave to Appeal filed against the aforesaid decision
has also been dismissed by the Supreme Court in SLA No.6424/2015
on 13.04.2015, a copy of which is also placed on record.
14. In view of the same, the judgments passed by this Court and relied
upon by the counsel for the petitioner 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) which have been distinguished by the
writ court in the impugned judgement are held to be good and still holding
the field, in which the similar controversy has been resolved by considering the
provisions of Rule 42 (1)(a) of the Rules of 1976 which does not require
corresponding acceptance of appointing authority as it is a unilateral act of the
government servant to quit the Government service at his will after rendering
the minimum service.
15. Resultantly, the appeal stands allowed and the impugned order
dated 8.7.2021 (Annexure A/3) passed by the learned Single Judge of
this Court in W.P. No.13815/2021 is hereby set aside. Resultantly, the
impugned order dated 09.09.2020 (Annexure P/6) passed by the
respondent no.1 is hereby quashed and the respondents are directed to
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to release all the retiral dues such as pension, gratuity, leave
encashment, Family Benefit Fund, Group Insurance Scheme, GPF, etc.
by treating the petitioner/appellant retired from the post of Insurance
Medical Officer from the services of respondent No.1/Department
w.e.f. 01.3.2020 with all consequential and monetary benefits along
with Bank interest rates.
(Subodh Abhyankar ) (Satyendra Kumar Singh)
JUDGE JUDGE
moni
Digitally signed by MONI RAJU
Date: 2022.03.24 10:06:08
+05'30'
:12: W.A.No. 620/2021
THE HIGH COURT OF MADHYA PRADESH, INDORE BENCH
Writ Appeal No. 620/2021
(Dr. Durgesh Rathi vs. State of Madhya Pradesh and another)
Indore, Dated: 04.02.2022
Shri L.C. Patne, learned counsel for the appellant.
Shri Aditya Garg, learned Government Advocate for the
respondent/State.
Arguments heard.
Reserved for judgment.
(Subodh Abhyankar ) (Satyendra Kumar Singh)
JUDGE JUDGE
Indore, Dated: 23.03.2022
Judgment delivered, signed and dated.
(Subodh Abhyankar ) (Satyendra Kumar Singh)
JUDGE JUDGE
moni
THE HIGH COURT OF MADHYA PRADESH,INDORE BENCH
:13: W.A.No. 620/2021
Division Bench : Hon'ble Shri Justice Subodh Abhyankar
Hon'ble Shri Justice Satyendra Kumar Singh
Writ Appeal Case No.620/2021
2 Parties Name Dr.Durgesh Rathi vs. State of M.P.
3 Date of Judgment 23rd of March, 2022
4 Bench constituted of Division Bench
Hon'ble Justice Hon'ble Shri Justice Subodh Abhyankar Hon'ble Shri
Justice Satyendra Kumar Singh
5 Judgment passed by Hon'ble Shri Justice Subodh Abhyankar
6 Whether approved for Yes
reporting
7 Name of counsel for Shri L.C. Patne, learned counsel for the applicants.
the parties
Shri Aditya Garg, learned Govt. Advocate for the
respondent/State.
8 Law laid down Rule 42(1)(a) of the M.P Civil Services (Pension) Rules,
1976. Notice of Voluntarily retirement does not require
corresponding acceptance of appointing authority.
State of Madhya Pradesh vs. Dr.Harendra Jaseja
reported in 2014 SCC OnLine MP 5940; 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) which have
been distinguished by the writ court in the impugned
judgement are held to be good and still holding the
field, in which the similar controversy has been resolved
by considering the provisions of Rule 42 (1)(a) of the
Rules of 1976 which does not require corresponding
acceptance of appointing authority as it is a unilateral
act of the government servant to quit the Government
service at his will after rendering the minimum service.
Relied upon: Dr. Duresh Rathi vs. State of Madhya
Pradesh & others (W.A.No.247 of 2021 dated 17.6.2021)
Distinguished: State of Uttar Pradesh & others vs.
Achal Singh held, is distinguishable and has no bearing
on Rule 42 of M.P. Rules.
9 Significant para 10 to 14
(Subodh Abhyankar)
Judge
