[Cites 1, Cited by 0]
Orissa High Court
Dr. Ajaya Kumar Swain vs State Of Odisha & Ors. .... Opposite ... on 9 February, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.707 of 2026
Dr. Ajaya Kumar Swain
.... Petitioner
Mr. B. Routray, Sr. Advocate along with
Mr. S. Sekhar, Adv.
-versus-
State of Odisha & Ors. .... Opposite Parties
Mr. P.P. Behera, ASC
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
09.02.2026
Order No.
03. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Heard learned counsel appearing for the Parties.
3. Pursuant to the order dtd.15.01.2026, learned Addl.
Standing Counsel produced the instruction provided by the
Department vide letter dtd.07.02.2026 with service of copy
on the learned Senior Counsel appearing for the Petitioner.
The same be kept in record.
4. The present Writ Petition has been filed inter alia with
the following prayer:-
"It is therefore, most humbly prayed that this Hon'ble Court
be graciously pleased to:
i) Admit the writ application.
ii) Call for the record.
iii) Issue Rule NISI calling upon the Opposite Parties to show
cause as to why the impugned order dated 29.12.2025 under
Annexure-19 as well as the order dated 19.12.2025 under
Annexure-17 and the earlier orders under Annexure-11 series
& 12 shall not be quashed.
// 2 //
iv) If the Opp. Parties fail to show cause or show insufficient
cause, issue a writ in the nature of certiorari or any other
appropriate writ/writs, order/orders, thereby quashing the
impugned order dated 29.12.2025 under Annexure-19 as
well as the order dated 19.12.2025 under Annexure-17 and
the earlier orders under Annexure-11 series & 12.
v) Issue a writ in the nature of mandamus ог any other
writ/writs, order/orders, direction/directions by directing the
opposite parties more particularly opposite party no. 1 to
allow the petitioner to retire from government service
voluntarily within reasonable time to be stipulated by this
Hon'ble Court. a
vi) And further direction be issued to the opp. parties to grant
all service and financial benefits to the petitioners from the
date of initial appointment.
vii) And/or pass any other order/orders, direction/directions
this Hon'ble Court deems fit and proper for the ends of
justice.
And for the said act of kindness, the petitioners as in duty
bound shall ever pray."
5. Learned counsel appearing for the Petitioner
contended that while in service as a Consultant (Paediatric),
SNCDHH, Jagatsinghpur, Petitioner pursuant to the earlier
order of this Court made a detailed application seeking
voluntary retirement from service under Annexure-16.
5.1. It is contended that such an application was made in
terms of the provisions contained under Rule-42 of the OCS
(Pension) Rules, 1992. However, without proper
appreciation of the provisions contained under Rule-42 of
the Rules and the decision rendered by this Court in Writ
Appeal No.526 of 2025, claim of the Petitioner was rejected
vide the impugned communication dtd.29.12.2025 under
Annexure-19.
// 3 //
5.2. Learned Senior counsel appearing for the Petitioner
placing reliance under the provisions contained under Rule-
42 of the Rules contended that application to take
voluntary retirement can only be rejected, if any proceeding
is pending against the Petitioner.
5.3. Since it is not disputed that no proceeding is pending
against the Petitioner and the application was submitted
under Rule-42(1) of the Rules, the ground on which claim of
the Petitioner has been rejected is not sustainable in the
eye of law. This Court in Para-6.3. to 6.5. of the order
dtd.08.07.2025 in W.A. No.526 of 2025 has held as
follows:-
"6.3: Reading of Rule 42 of the Odisha Civil Services
(Pension) Rules, 1992, framed in exercise of powers conferred
by the proviso to Article 309 of the Constitution of India, gives
clear picture about the detail modality regarding voluntary
retirement on completion of 20 years qualifying service.
Whereas notice for voluntary retirement may require
acceptance by the Appointing Authority, nevertheless, the
same is to be "generally given in all cases", subject, of course,
to certain exceptions specified therein. A Note appended to
sub-rule (2) thereof carves out situations where the
acceptance of application for voluntary retirement can be
refused by the Appointing Authority.
6.4. The reason ascribed by the Health and Family Welfare
Department vide Letter dated 17.09.2024 refused acceptance
of notice/application for voluntary retirement "in the larger
public interest owing to dearth of faculties in the Government
Medical College & Hospitals and PG Institutes of the State".
Such an exceptional situation does not find place as a ground
under Rule 42 of the Pension Rules for denying voluntary
retirement.
6.5. It is significant to take note of the term "generally in the
Note appended to sub-rule (2) of Rule 42, which in clear terms
would indicate that the exercise of power by the Appointing
Authority applies in most situations but is not absolute. It
suggests a presumption in favour of acceptance, but this
// 4 //
presumption can be overridden by specific circumstances
which are enumerated in said sub-rule. In this context, it
means that acceptance of a Government servant's request is
the norm, but there are exceptions."
6. On instruction, learned Addl. Standing Counsel
contended that since the State is under process to
challenge the order passed by this Court in W.A. No.526 of
2025, relevancy and effect of the said order cannot be taken
into consideration.
6.1. It is further contended that since there is dearth of
doctors in the State and suffering of the Petitioner so
indicated in his application is not of such serious nature,
on due consideration of his claim, the same was rejected
vide the impugned communication dtd.29.12.2025 under
Annexure-19. The stand taken in Para-5 and 6 of the
instruction reads as follows:-
"5. That, after receipt of the same, the prayer of Dr. Ajay
Kumar Swain for voluntary retirement was duly considered
by the authority and it was observed that the disease said to
be suffered by him is not a critical health problem/terminal
disease and in view of dearth of doctors his prayer for
voluntary retirement cannot be accepted in exigencies of
public interest. Hence, Government has been pleased to reject
his prayer for voluntary retirement. Accordingly, he was
communicated vide Health & FW Department Letter No.
38219/H dated 29.12.2025 and Speaking Order No. 38548
dated 31.12.2025.
6. That, as regards direction of the Hon'ble High Court in WA
No. 526 of 2025 filed by Dr. Snigdha Prava Mishra vrs State
of Odisha and Others, it is humbly submitted that, in view of
considered views of Finance Department, obtaining due
concurrence of Law Department, necessary steps have
already been taken for filing the SLP before the Hon'ble
Supreme Court of India challenging the Order dtd.
08.07.2025 passed in W.A. No. 526 of 2025."
// 5 //
7. Having heard learned counsel appearing for the
Parties and considering the submissions made, this Court
finds that pursuant to the order passed by this Court on
18.11.2025 in W.P.(C) No.30311 of 2025, Petitioner made a
detailed application to take voluntary retirement from
service in terms of the provisions contained under Rule-42
of the Rules. Rule-42 of the Rules reads as follows:-
"42.Service-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 cold period.
(3) (a) A Government servant desirous of retiring under sab-
rate (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-ente (2), may
// 6 //
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.
(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."
7.1. However, on the ground that Petitioner's health
condition is not of serious nature and there is dearth of
doctors in the State. Opposite Party No.1 rejected the
application made by the Petitioner to take voluntary
retirement from services, vide the impugned
communication dtd.29.12.2025 under Annexure-19. This
Court placing reliance on the provisions contained under
Rule-42 of the Rules and the order passed by this Court in
// 7 //
W.A. No.526 of 2025, is of the view that the ground on
which Petitioner's claim has been rejected is not at all
sustainable in the eye of law.
7.2. Even if the order passed in Writ Appeal No.526 of
2025 is assailed by the State before the Apex Court, as
contended, but since the relevant rule is very clear, this
Court is inclined to quash the impugned rejection so
available under Annexure-19. While quashing the said
rejection, this Court directs Opposite Party No.1 to accept
the application submitted by the Petitioner under
Annexure-16 and allow the Petitioner to take voluntary
retirement from service with passing of a fresh order within
a period of two (2) weeks hence.
7.3. Since on the ground that Petitioner is not discharging
his duty on the face of rejection of his claim to take
voluntary retirement, communication under Annexure-17
has been issued, this Court is also inclined to quash the
communication dtd.19.12.2025 so available under
Annexure-17 and quash the same accordingly.
8. Accordingly, the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Location: HIGH COURT OF ORISSA, CUTTACK
