Orissa High Court

Dr. Rabi Narayan Dhar vs State Of Odisha & Ors. ..... Opposite ... on 16 April, 2025

Author: A.K. Mohapatra

Bench: A.K. Mohapatra

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                  W.P.(C) No.21060 of 2024

 An application filed under Articles 226 and 227 of the
 Constitution of India.

Dr. Rabi Narayan Dhar              .....                  Petitioner
                                            Mr. Sameer Kumar Das,
                                            Adv.


                           -versus-

State of Odisha & Ors.             .....           Opposite Parties
                                            Mr. U.C. Jena, A.S.C.



                           CORAM:

            JUSTICE A.K. MOHAPATRA

_____________________________________________________
Date of Hearing : 05.02.2025 | Date of Judgment: 16.04.2025
_____________________________________________________

A.K. Mohapatra, J. :

1. The Petitioner has filed the present writ application with a

prayer to quash the order dated 08.02.2024 of the OP No.1- State

Government, under Annexure-14 and the consequential order

dated 09.02.2024 of the OP No.3- Director, PGIMER, Capital

Hospital, Bhubaneswar, under Annexure- 15 and further to direct

the OP No.1- State Government to allow the Petitioner to avail

voluntary retirement from his service along with grant of all

consequential retirement benefits.

FACTS

2. The factual background leading upto filing of this writ

application as pleaded by the Petitioner, in gist is that, the

Petitioner started his service as an Asst. Surgeon in Class-II

service under Odisha Medical and Health Services (hereinafter,

"OHMS") cadre on 01.07.1996. Thereafter, he was selected and

recommended by the Odisha Public Service Commission

(hereinafter, "OPSC") for appointment as a Lecturer (Junior

Teacher) in Orthopaedics Surgery and was posted at SCB Medical

College and Hospital, Cuttack (hereinafter, "SCBMCH, Cuttack")

on 14.02.2003. Pursuant to the recommendation of OPSC, the

Petitioner joined in the OMES cadre with continuity of his past

service and with pay protection and other benefits on 17.02.2003.

3. In the course of employment, the Petitioner was posted to

different medical colleges by transfer and worked as Asst.

Professor and Associate Professor at SCBMCH, Cuttack and

VIMSAR, Burla respectively. Subsequently, the Petitioner was

promoted to the post of Professor in Orthopedics on 20.10.2020

and he joined as Professor in Orthopedics, at B.B. Medical

College and Hospital, Koraput on 21.10.2020.

4. Finally, after rendering his services as a doctor for

decades, the Petitioner submitted application for voluntary

retirement in terms of Rule-42 of Odisha Civil Services (Pension)

Rules, 1992 on 27.12.2023, citing health ailment and some

private/personal difficulties. The application for voluntary

retirement was forwarded to OP No.3 Director, PGIMER, by letter

no. 278 dated 27.12.2023. On receipt of the application for

voluntary retirement of the Petitioner, OP No.3- Director,

PGIMER, transmitted it to OP No. 2- DMET, and eventually, OP

No.2- DMET, forwarded the application for voluntary retirement

of the Petitioner to OP No.1- State Government, for its acceptance

with a specific note that, the Petitioner has completed more than

27 years of Government service and that there is no departmental

or criminal proceeding pending against the Petitioner, by letter

dated 20.01.2024.

5. While recommending the application for voluntary

retirement of the Petitioner from Government service, the OP

No.2- DMET in Memo no. 1018 dated 20.01.2024 directed OP

No.3- Director, PGIMER, to furnish the original medical

certificates pertaining to the treatment of the Petitioner, the

information with regard to pendency of departmental/ vigilance

proceeding against the Petitioner and the original service book of

the Petitioner for verification. Complying with the aforesaid

direction, OP No.3- Director, PGIMER, by its letter no. 535 dated

08.02.2024, directed the Petitioner to comply with the directions

of the OP No.2- DMET. The Petitioner instantly produced all the

required papers on the very same date before OP No.3- Director,

PGIMER and resultantly, OP No.03- Director, PGIMER,

transmitted the required information and documents to OP No.2-

DMET, by its letter no. 537 dated 08.02.2024.

6. But before receipt of the required documents as submitted

by the Petitioner, OP No.1- State Government, rejected the

representation of the Petitioner for voluntary retirement from

government service, by its letter no. 3796 dated 08.02.2024, on the

ground that it will affect larger public interest and there is dearth

of faculties in medical colleges. The aforesaid decision of OP

No.1- State Government, was communicated to the Petitioner by

OP No.3- Director, PGIMER, by letter no. 548 dated 09.02.2024.

Being aggrieved by the rejection of his application under Rule- 42

of OCS (Pension) Rules, 1992, for voluntary retirement, the

Petitioner has filed the present writ application.

7. Heard Mr. Sameer Kumar Das, learned counsel

representing the Petitioner and Mr. UC Jena, learned Additional

Standing Counsel. Perused the writ application and the documents

annexed thereto.

SUBMISSIONS FOR THE PETITIONER

8. Mr. Sameer Kumar Das, learned counsel representing the

Petitioner, at the outset submitted that, the order of OP No.1 dated

08.02.2024, rejecting the application of the Petitioner for

voluntary retirement is illegal, arbitrary, whimsical and

discriminatory. It was submitted that Rule- 42 of the OCS

(Pension) Rules, 1992, provides that a person at any time after

completion of 20 years of government services, may by submitting

a notice of not less than 3 months, to the appointing authority,

apply for voluntary retirement from service. He further added that,

it is also specifically provided in the proviso of the Rule that the

appointing authority generally accepts all such applications where

there is no disciplinary proceeding or a criminal proceeding

pending or contemplated against a government servant for

imposition of major penalty.

9. Thereafter, Mr. Das drew the attention of the court to

Rule- 42 of the OCS (Pension) Rules, 1992, which reads as-

"42.Voluntary Retirement on completion of 20 years Qualifying Service-

(1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.

(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority.

NOTE-Such acceptance may be generally given in all cases except those (a) in which disciplinary proceedings are pending or contemplated against the Government servant concerned for the imposition of a major penalty and the disciplinary authority, having regard to the circumstances of the case, is of the view that the imposition of the penalty of removal or dismissal from service would be warranted in the case or (b) in which prosecution is contemplated or have launched in a Court of Law against the Government servant concerned. If it is proposed to accept the notice of voluntary retirement in such cases, approval of the Government should be obtained:

Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date that of expiry of the said period. (3) (a) A Government servant desirous of retiring under sub-

rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reason therefor.

curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.

(4) This rule shall not apply to a Government servant who retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement.

Explanation-For the purpose of the rule the expression "appointing authority" shall means the authority which is competent to make appointment to the service or post from which Government servant seeks voluntary retirement (5) The qualifying service as on the date of intended retirement of the Government servant retiring under this rule, with or without permission shall be increased by the period not exceeding five years, subject to the condition that the total qualifying service rendered by the Government servant does not any case exceed twenty five years and it does not take him beyond the date of superannuation with effect from 01.12.2008. (Vide Finance Department Notification No.24142/F., dtd.04.09.2015) (6) The pension and retirement gratuity of the Government servant retiring under this rule shall be based on the emoluments as specified under rule 48 and the increase not exceeding five years in his qualifying service not entitle him to any notional fixation of pay for the purposes of calculating pension and gratuity."

Mr. Das, submitted that, on a plain reading of Rule- 42(1)

& (2) and the note appended thereto, it can be concluded that

acceptance of the application for voluntary retirement is a rule, but

the rejection thereof is an exception to the general rule. Only in the

event of pendency of disciplinary or criminal proceeding,

application for voluntary retirement may be rejected or denied. He

further contended that there is no other ground available to the

appointing authority under the Rule- 42 to reject an application for

voluntary retirement except on pendency of any proceeding or that

the employee concerned has not completed 20 years of service. It

was submitted by Mr. Das that, the Petitioner has uninterruptedly

and without any blemish, has competed 27 years of service under

the State Government and he has an unblemished service record,

and that the case of the Petitioner complies with all the statutory

requirement for availing voluntary retirement and he has an

unblemished service record with no criminal or departmental

proceeding either initiated or pending against him. Therefore, the

OP No.1- State Government had no legal reason to reject the case

of the Petitioner seeking voluntary retirement from service.

10. Learned counsel for the Petitioner further contended that,

the ground assigned for rejection of the application of the

Petitioner for voluntary retirement was that, there is involvement

of larger public interest owing to dearth of faculties in the

Government Medical Colleges and Hospital and P.G. Institutes of

the State, are absolutely baseless and unwarranted. He further

substantiated the grounds, by stating that Rule- 42 doesn‟t

prescribe "larger public interest" as a ground for rejecting

application of voluntary retirement. He further argued that, even if

without conceding, but admitting only for argument sake, that

such ground of "larger public interest" is available with the state,

then it should be applied to all the employees and not in isolation

or selectively to the Petitioner. Additionally it was contended that,

the OP No.1- State Government has accepted as many as five

cases of the similar nature in the year of 2023 and is regularly

accepting applications of voluntary retirement of the teacher of the

Government Medical Colleges each year. He also submitted that,

had there been any larger public interest involved or there is a

dearth of faculties, numerous teachers of Government Medical

Colleges, should not have been allowed voluntary retirement.

Thus, the Opposite Parties by adopting a selective method have

violated the principles envisaged in the Article- 14 and 16 of the

Constitution of India.

11. Mr. Das, in support of his aforementioned plea, submitted

that the Petitioner has obtained the information from the

Government under Right to Information Act, 2005 through one of

his relatives Sri Sitakanta Mohanty. Such information discloses

that numerous doctors including faculties in Government Medical

Colleges have been allowed voluntary retirement under Rule- 42

of OCS (Pension) Rules, 1992. He further laid emphasis that the

law is no more res integra that all the decision of the government

should be equitable. When other similarly situated persons

including one person namely Dr. Arpita Priyadarshini, Prof. &

HOD Department of Physiology, SJMCH, Puri, has been allowed

voluntary retirement on 12.10.2023, the Petitioner cannot be

singled out and discriminated by rejecting his application for VRS.

12. On merits of the Petitioner‟s application seeking VRS, Mr.

Das, submitted that, in view of consistent suffering of the

Petitioner, he is on rest on the advice of his doctor. The Opposite

Party No.2- DMET, Odisha in letter dated 09.07.2024, directed the

Petitioner to appear before the medical board and after such

examination, the medical board has allowed the Petitioner to take

rest. Moreover, due to his consistent suffering, the Petitioner is

unable as to perform his duties properly and unable as such to

serve neither the public nor the Government to the best of his

abilities. Therefore, in such situation, it is in the interest of all, to

grant voluntary retirement to the Petitioner.

ARGUMENT ON BEHALF OF OP No.1

13. Per contra, Mr. U.C. Jena, learned Additional Standing

Counsel, appearing on behalf of the OP No.1- State of Odisha,

submitted that the application of the Petitioner for voluntary

retirement dated 27.12.2023 has been rejected by the Government

vide Letter No. 3796 dated 08.02.2014, because there is acute

shortage of faculties in the Government Medical Colleges &

Hospitals of the State and the Department is in a very precarious

position to the fulfil the prescribed Minimum Standard

Requirements (MSRs) of the National Medical Council

(hereinafter "NMC"), in respect of minimum number of faculties

to be in position in Government Medical Colleges.

14. Learned A.S.C., further stated that, upon promotion to the

rank of Professor, Orthopaedics, the Petitioner was posted as

Professor, Orthopaedics at BBMCH, Balangir vide Heath and

Family Welfare Department Order No. 23997 dated 20.10.2020.

After joining at BBMCH, Balangir on 21.10.2020, the Petitioner

submitted various representations on 16.01.2023, 22.05.2023 and

18.09.2023 for transfer from BBMCH, Balangir. Being a senior

Professor having vast experience and expertise in the field of

Orthopaedics, the Petitioner was transferred and posted against the

vacant post of Professor, Orthopaedics at PIGMER and Capital

Hospital, Bhubaneswar, the standalone Post Graduate Institute in

the State Capital, vide Notification No. 27367 dated 09.11.2023.

In compliance with the said notification dated 09.11.2023, the

Petitioner has submitted his joining report on 13.11.2023 at

PIGMER and Capital Hospital, Bhubaneswar. But after joining

there, he remained on frequent leaves on various grounds starting

from 30.12.2023. This aspect was brought to the notice of the OP

No.2- DMET by the OP No.3- Director, PGIMER and Capital

Hospital, Bhubaneswar, vide Letter No. 3333 dated 04.07.2024

expressing the difficulties/ problems being faced at PGIMER &

CH in patient care; in Post Graduate Education as well as in

departmental and administrative functions.

15. Learned counsel for the petitioner further highlighted the

fact that, the Petitioner was directed to appear before the Standing

Medical Board- cum- CDM & PHO, Cuttack, vide Letter dated

09.07.2024 issued by the DMET. The Standing Medical Board

was convened on 03.08.2024, and the Petitioner duly appeared on

the scheduled date. After proper examination of the Petitioner by

the Standing Medical Board, the Petitioner was advised 1 month

rest. Pursuant to the report of the standing Medical Board, the

DMET again vide Letter No. 15723 dt.30.08.2024 directed the

Petitioner to appear before the Standing Medical Board on

03.09.2024 i.e. exactly after one month. Instead of appearing

before the standing Medical Board, vide E-mail communication

dated.01.09.2024, the Petitioner again requested for extension of

leave for an additional period of 4 weeks which was rejected by

the DMET vide Letter No. 17114 dt.12.09.2024 and the Petitioner

was directed to resume duty on or before 17.09.2024 positively.

However, it was submitted by the Learned ASC that, instead of

resuming the duty, the Petitioner is still continuing under leave.

16. It was reiterated by Mr. Jena, learned ASC, that the

Petitioner has applied for voluntary retirement on 27.12.2023

which was rejected vide letter no. 3796/H dated 08.02.2024 in

lager public interest owing to dearth of faculties in the

Government Medical College and Hospitals and a leading PG

Institutes of the State. Subsequently, the Petitioner represented

again for taking voluntary retirement from service for the second

time on 29.07.2024 on the same ground of illness of self and the

said representation has not been considered and was rejected by

Department Letter no. 24040/H, dated 17.09.2024.

17. Furthermore, referring to Rule- 42(1) of OCS (Pension)

Rules learned counsel for State submitted such provision lays

down that, at any time after a government servant has completed

twenty years of qualifying service, he/she may seek retirement, by

giving a notice of not less than three months in writing to the

appointing authority. Further, Rule- 42(2) of the OCS (Pension)

Rules provides that the notice of voluntary retirement given under

sub- rule (1) shall require acceptance by the appointing authority.

He also stated that from the perusal of the provisions, it becomes

apparent that an employee does not have an unfettered right to

voluntary retirement by merely serving a notice of three months to

the appointing authority. Rather, voluntary retirement would be

granted subject to acceptance of the notice by the appointing

authority, as provided in the relevant rules.

18. While substantiating his argument further, learned counsel

for State contended that, the meeting of „VR Committee‟, which

was constituted to scrutinize the representations of the faculties of

OMES Cadre seeking Voluntary Retirement/ Resignation, was

held on 01.02.2024 & 27.08.2024 to consider the voluntary

retirement application of the Petitioner along with representation

of other faculties. After due deliberation, the committee

unanimously recommended not to permit VR to faculties as there

was acute shortage of doctors in the Government Medical College

& Hospitals of the State and that the department was in a tight

position to fulfil the MSRs as prescribed by NMC.

19. Mr. Jena, learned counsel for the State, to support his

submissions, placed reliance on the case of State of Uttar Pradesh

v. Achal Singh, reported in (2018) 17 SCC 578, in which the

State of Uttar Pradesh had declined to accept the voluntary

retirement applications of certain doctors on the ground of public

interest. He added that at Paras- 36,37,41,42 and 43 of the

judgment, the Hon‟ble Supreme Court taking into consideration

similar provisions in the UP- Rules and similar factual background

as is involved in the present case has upheld the decision of the

State of Uttar Pradesh in disallowing voluntary retirement to the

doctors and has further held that the State has not committed any

illegality in rejecting VRS applications submitted by the doctors.

20. Additionally, it was contended by the learned counsel for

the State that, the Directive Principles of State Policy as enshrined

under Articles 36-51 in Part IV of the Constitution of India

outlines the state‟s duties to ensure the right to health, such as

improving Public Health, protecting the health of mothers and

infants, securing the health of workers, etc. In order to fulfil these

duties, the State Government is taking steps for providing

universal and affordable healthcare services to the people of the

State, by establishing 12 Medical Colleges and Hospitals, 2 PG

Institutes and is in the process to open 2 new Medical Colleges at

Talcher and Phulbani. Since there is acute shortage of faculties in

the Government Medical Colleges and Hospitals in the State, the

State Government is finding it difficult to fulfil the MSR as

prescribed by the NMC with respect to minimum number of

faculties to be recruited in Government Medical Colleges for

getting approval of NMC. In view of contentions, provisions

referred and precedents relied on, he further submitted that the

order of rejection of the application for voluntary retirement of the

Petitioner, by OP No.1- State Government, is legal and is in

conformity with spirit of Rule- 42 of OCS (Pension) Rules, 1992.

Ultimately, learned counsel for the State urged that the writ

application of the petitioner be dismissed in limine.

REPLY ARGUMENTS FOR THE PETITIONER

21. Countering the arguments made by Mr. Jena, Mr. Das

learned counsel for the Petitioner submitted that, the ground of so

called larger public interest owing to dearth of faculties in

government medical colleges and hospitals is nothing but an

attempt by the Opposite Parties to draw sympathy of this Court

and to justify their conduct. Due to non- filing of the vacant

position of faculties in different government medical colleges and

hospitals despite availability of good number of eligible

candidates, an artificial scarcity of doctors/ faculties has been

created by the government. He further stated that, the rules provide

that the authorities should fill up the faculty position each year

through OPSC. But there are still several vacancies. Such

vacancies are being filled up on ad hoc or contractual basis,

creating havoc in the medical institutions of the State. He also

added that when the state government is contemplating to open

medical colleges in almost all districts and as of now there are

about 10 medical colleges throughout the state, hardly any steps

are being taken by the state to fill up such vacancies on regular

basis by conducting recruitment drives through the OPSC at

regular intervals. Thus, the Opposite Parties are logically and

legally estopped to put the blame on the petitioner, which is a

direct result of their failure to fill up vacancies on regular basis.

22. In the course of his submission, he drew the attention of

this court‟s decision in W.P.(C) No. 14270 of 2024, wherein only

after interference of this court, the faculty position in the rank of

Associate Professor in Government Medical Colleges have been

filled up by giving promotion to the existing Assistant Professors.

The dearth of faculties in government colleges and hospitals is due

to the inaction of the government itself, and the state government

cannot be allowed to take advantage of its own inaction, he added.

23. Mr. Das, vehemently argued that, the Petitioner belongs to

the Department of Orthopaedics and therefore, no one else other

than him knows his own suffering. The Petitioner is not in a

position to work as per the norms of the Government and he won‟t

be able to give complete justice to not only to his job but to the

patients as well. He further submitted that the vacancy which is

likely to ocuur, in the event of retirement of the Petitioner from

service, can very well be filled up by many brilliant doctors who

are ready and willing to serve the state and the public, subject to

condition that they are eligible for the appointment.

24. In reply to the case law in State of Uttar Pradesh v. Achal

Singh, reported in (2018) 17 SCC 578, relied upon by Mr. Jena,

Learned ASC, was contended that, the same has no application to

the facts of the present case. The above noted reported case was

decided on different set of facts and different set of rules

altogether. Whereas, the present writ application is required to be

adjudicated strictly in terms of Rule 42 of the OCS (Pension)

Rules, 1992, and on the basis of the principle flowing from the

rule, i.e., "acceptance of the application for voluntary retirement

is a rule, but the cancellation is an exception." Therefore, in view

of the arguments made, pleadings submitted, provisions of law

referred to and legal principles relied on, Mr. Das prayed before

the court to quash the order of rejection of the application of the

Petitioner for voluntary retirement under Annexure 14 & 15 and to

grant voluntary retirement to the Petitioner.

ISSUES FOR CONSIDERATION

25. Having regard to the submissions made by the learned

counsel for the Petitioner and learned Additional Standing Counsel

and, on a careful scrutiny of the materials placed before this Court,

it is observed that this Court is required to examine the impugned

rejection order strictly in the light of provisions contained in Rule-

42 of Odisha Pension Rules, 1992 and within the four corners of

the said Rule. It would be profitable to mention here that the OCS

(Pension) Rules, 1992 is a set of Rules frames under Article- 309

of the Constitution of India. Thus, the same is not executive

instruction/ guidelines. Such Rule has definitely a statutory

flavour.

ANALYSIS OF THIS COURT

26. While considering the case of the Petitioner, this court by

applying the provisions contained in Rule-42, which is the only

provision that governs the subject of voluntary retirement from

Government service in the State of Odisha, observes that the

aforesaid rule provides that any government servant who has

completed 20 years of qualifying service is eligible to submit an

application for taking voluntary retirement from service.

Moreover, while submitting such application the Govt. servant is

required to give a notice of not less than three months to the

Appointing Authority. It is not disputed by either side that the

Petitioner is having eligibility to make such an application, given

that he has completed more than 20 years of service and, that he

had given a notice as required under Rule-42 (1) of the OCS

(Pension) Rules, 1992.

For better appreciation of the Rules, Rule- 42 of the OCS

(Pension) Rules, 1992, is quoted herein below-

"42.Voluntary Retirement on completion of 20 years Qualifying Service-

(1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.

(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority.

Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date that of expiry of the said period.

(3) (a) A Government servant desirous of retiring under sub-

rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reason therefor.

(b) On receipt of a request under clause (a), the appointing authority subject to the provision of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if he is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.

emoluments as specified under rule 48 and the increase not exceeding five years in his qualifying service not entitle him to any notional fixation of pay for the purposes of calculating pension and gratuity."

27. With regard to the grounds for seeking voluntary

retirement under Rule-42, this Court is of the considered view that

Rule-42 of the OCS (Pension) Rules, 1992 does not specify the

ground on which an application can or cannot be made by the

Government servant to the Appointing Authority for seeking

voluntary retirement. Therefore, this Court has no hesitation in

coming to a conclusion that the provision contained in Rule-42 (1)

is an open provision subject to condition that the Govt. servant

seeking voluntary retirement must have completed 20 years of

qualifying service and must have given a notice of not less than

three months to the Appointing Authority. Although, it is pertinent

to mention that the minimum period of notice required can be

waived by the Appointing Authority subject to the provisions

contained in other sub-rules of Rule-42. Since the same is not the

subject matter of dispute in the present writ application, this Court

is not dealing with such aspects in the present case.

28. Coming back to the facts of the present case, this Court

observes that the Petitioner has minimum qualifying service period

required for making an application for voluntary retirement.

Further, it appears that he had given a notice of not less than three

months to the Appointing Authority as required under Rule-42 (1)

of the OCS (Pension) Rules, 1992. However, voluntary retirement

is subject to the acceptance of the same by the Appointing

Authority. At this juncture, this Court would like to refer to the

Note which has been appended to Rule- 42 of OCS (Pension)

Rules, 1992. The Note appended to Rule- 42(2) provides that

generally the application seeking voluntary retirement by any

Govt. employee may be accepted by the Appointing Authority.

However, two exceptions have been specifically carved out under

which the Appointing Authority is under no legal obligation to

accept the voluntary retirement of the Govt. servant generally.

Those two exceptions have also been specifically referred to in the

preceding paragraphs.

29. On a careful consideration of the factual background of the

Petitioner‟s case and on the basis of the materials placed before

this court, this Court is of the considered view that the Opposite

Party No.1 while rejecting the application of the Petitioner has not

taken the ground of pendency of Disciplinary Proceeding or any

prosecution having been contemplated or having been launched

against the Petitioner. Therefore, the two exceptions carved out in

the note to the general rule of accepting the VRS, subject to the

satisfaction of the twin conditions laid down in Rule-42, do not

apply to the facts of the present Petitioner‟s case. Therefore, the

case of the Petitioner does not fall within the exceptions as carved

out in the note. As such, this Court has no hesitation in coming to

a conclusion that the case of the Petitioner would be governed by

the general principle as laid down in Rule-42, and as a result, such

VRS application of the Petitioner should have considered keeping

in view the Rule-42 and not on any extraneous ground.

30. With regard to the judgment relied upon by the learned

Additional Standing Counsel reported in (2018) 17 SCC 578, this

Court on a careful reading of the said judgment observes that the

main question that fell for consideration before the Hon‟ble

Supreme Court in the above-mentioned judgment was as to

whether under Rule-56 of the U. P. Fundamental Rules, an

employee has an unfettered right to seek voluntary retirement by

serving a notice of three months to the State Govt. or whether the

State Govt. under the explanation attached to Rule-56 of the U. P.

Fundamental Rules, is authorized to decline the prayer for

voluntary retirement, under Clause-(c) of Rule-56 of the said rules,

in the public interest. On a careful reading of the above-mentioned

judgment, this Court observes that the judgment rendered by the

Hon‟ble Supreme Court in Achal Singh‟s case (supra) was

decided under a different provision of Rule than the Rule

applicable to the case of the present Petitioner.

31. So far Achal Singh‟s case is concerned, the Hon‟ble

Supreme Court was examining Clause-(c) of Rule-56 of the

Fundamental Rules applicable to the employees of the State of

Uttar Pradesh. The said Clause-(c) of Rule-56 confers a right is

conferred on the appointing authority to require any government

servant to retire after attaining the age of fifty years by giving a

notice of three months, and a right on the government servant to

voluntarily retire after attaining the age of 45 years or on

completion of a qualifying service period of 20 years, by giving a

notice of three months to the appointing authority. However, the

explanation appended to the Rule-56 of Fundamental Rules of

State of Uttar Pradesh provides that the decision of the Appointing

Authority under clause-(c) shall be in the negative if it appears to

the said authority such acceptance is against public interest.

Moreover, the explanation (2) to Rule-56 of the U. P. Fundamental

Rules further defines the materials that are to be taken into

consideration by the Appointing Authority in order to determine

whether the voluntary retirement under Rule-56(c) is in public

interest. In the case of Achal Singh, the Hon‟ble Supreme Court

on a detailed analysis of the Fundamental Rules framed by the

U.P. State Government, has categorically held that the State Govt.

has the power to decline the prayer for voluntary retirement

considering the public interest as provided in the rules, especially

in the context of the public interest as provided in the explanation

to Rule-56 of the U.P. Fundamental Rules.

32. The Hon‟ble Supreme Court has also referred to Article-47

and 51 (a) of the Constitution of India. On a careful analysis of the

aforesaid judgment, this Court further observes that in para-42 of

the above-mentioned judgment, the Hon‟ble Supreme Court while

referring to some of the earlier judgments of the Hon‟ble Supreme

Court has categorically observed that it would depend upon the

scheme of the rules as to whether the application for voluntary

retirement is to be accepted or not by the Appointing Authority. It

has also been observed that 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 the Hon‟ble Supreme Court in the case of

State of Haryana & ors. vs. S.K. Singhal reported in (1999) 4

SCC 293.

33. Reverting back to the facts of the case at hand and keeping

in view the legal requirement, the case of the Petitioner is to be

considered in the light of the provisions contained in Rule-42 of

the OCS (Pension) Rules, 1992. Moreover, such Rule doesn‟t

provide for a window to the Opposite Parties to take into

consideration any other factor while considering the VRS

application of the Petitioner. As such, this Court has no hesitation

to come to a conclusion that the judgment in Achal Singh‟s case,

which has been heavily relied upon by the learned Additional

Standing Counsel, is not applicable to the facts of the present case

as the same was considered and decided under the provisions

contained in Rule-56(C) of the Fundamental Rules meant for U.P.

State Govt. employees and the explanation appended thereto.

34. In the facts and circumstances of the present case, this

court would like to refer to view taken by this court in the case of

Dr. Manoranjan Mallik v. State of Odisha & Ors., W.P. (C) No.

9003 of 2024, wherein the Petitioner‟s representation under Rule

42 for voluntary retirement from service was rejected citing the

ground of dearth of faculties in the medical colleges in the State of

Odisha on the ground of public interest. In the above noted case,

this court in para- 26 of the judgment observed as follows:-

"26. In view of the aforesaid analysis of law as well as keeping in view the factual matrix involved in the present writ application, this Court is of the considered view that Rule-42 of the OCS (Pension) Rules, 1992 does not specifically provide any ground on which an application seeking voluntary retirement from govt. service can be made by any of the govt. servant. Moreover, in view of the Note appended to Rule-42 (2) such application seeking for VRS is to be accepted generally and the exception to such general provision has also been provided in the Note appended to the said Rule. So far the present Petitioner is concerned, there is no dispute that the Petitioner complies with the minimum requirement for making such application and he has followed the procedure of giving a notice of not less than three months. Therefore, the Opposite Parties are not within their authority in rejecting the application of the Petitioner seeking VRS on the ground of dearth of faculties in the medical colleges in the State of Odisha and the ground of public interest involved in the present case. Moreover, such a ground is not available to the Opposite Parties in view of the specific provisions contained in Rule-42. xxx."

35. Therefore, in view of the aforesaid analysis of law as well

as keeping in view the factual matrix involved in the present writ

application, this Court has no hesitation in coming to a conclusion

that the Opposite Parties have committed an illegality by rejecting

the application of the Petitioner seeking VRS from service. On

such grounds, the writ application filed by the Petitioner is bound

to succeed. Accordingly, the impugned order under Annexure-14

dated 08.02.2024 and under Annexure- 15 dated 09.02.2024 is

hereby quashed. Further, the Opposite Party No.1 is directed to

accept the VRS of the Petitioner with effect from the date of

expiry of the three months‟ notice period calculated from the date

of his initial application, which was admittedly submitted on