Dr. Vinoy @ Dr. Vinoy Singh vs The State Of Bihar And Ors
2021 Latest Caselaw 925 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.1556 of 2019
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Dr. Vinoy @ Dr. Vinoy Singh Son of late Gajendra Pratap Singh Resident of A-54, P.C. Colony, P.S. Kankarbagh, Distt. Patna, Bihar

... ... Petitioner/s Versus

1. The State Of Bihar through the Chief Secretary, Government of Bihar, Patna

2. The Principal Secretary, General Administration Department, Government of Bihar, Patna

3. The Principal, Department of Health (Medical Education), Government of Bihar, Patna

4. The Deputy Secretary, Department of Health (Medical Education ) Govt. of Bihar, Patna

5. The Accountant General ( A and E) Bihar, Patna

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Prabhat Ranjan Dwivedi, Advocate Mr. Rajeev Ranjan, Advocate Mr. Chandan Kumar, Advocate For the Respondent/s : Mr. Birju Prasad (GP-13) Mr. Ajit Anand, AC to G.P.13 Ms. Shweta Anand, AC to G.P.-13 ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR ORAL JUDGMENT Date : 18-02-2021

In this application under Article 226 of the

Constitution of India the petitioner has challenged the decisions

of the respondent-authorities vide order contained in Annexure-

5 whereby the written prayer of the petitioner for voluntary

retirement was treated as an application of resignation. The

challenge is on the ground that the impugned order suffers from

arbitrariness and is violative of the legal right of the petitioner.

2. The petitioner joined in State Health Services on Patna High Court CWJC No.1556 of 2019 dt.18-02-2021

07.09.1987. On 31.10.2005 the petitioner filed an application to

the Secretary, Government of Bihar, Health Department, stating

therein that due to certain personal and family reasons the

petitioner is not in a position to discharge his official duty with

responsibility. Hence, he may be permitted to retire voluntarily

with effect from 01.02.2006. Since, the petitioner had not

completed 20 years of service for retiral benefit. Hence, the

petitioner made further prayer in the said application that the

intervening period between 01.11.2005 to 31.01.2006 be treated

as period spent on extra-ordinary leave. The application was

forwarded through the Principal of Patna Medical College and

an advance copy was sent to the Secretary, Department of

Health (Medical Education), Government of Bihar. The

application of the petitioner dated 31.10.2005 is at Annexure-1.

Thereafter, the petitioner again sent letter dated 28.04.2006 to

the Secretary concerned drawing attention of the Secretary

towards his earlier letter dated 31.10.2005 and further stated that

if the department has any technical objection in allowing the

prayer of voluntary retirement, the petitioner be permitted to

retire from the service.

3. The technical difficulty in allowing voluntary

retirement was that the petitioner had not completed 30 years of Patna High Court CWJC No.1556 of 2019 dt.18-02-2021

qualifying service or attained 50 years of age on the date of

application for voluntary retirement as required by Rule 74(b) of

the Bihar Service Code.

4. However, the authorities did not pass any order

on the aforesaid petition; rather initiated a departmental

proceeding against the petitioner vide resolution dated

04.11.2006 on the ground that the petitioner was absent from

duty without any permission of the authority and was reportedly

engaged in services of some other State. After completion of

the inquiry the petitioner was exonerated in the disciplinary

proceeding on 02.01.2013. By the same order, the petitioner

was sanctioned extra-ordinary leave for the period of his

absence adopting the policy of "no pay for no work". As such,

the petitioner was in active and continuous service till the order

dated 02.01.2013.

5. Learned counsel for the petitioner submits that

respondent No.3 treated the application of the petitioner dated

31.10.2005 as an application of resignation without any rhyme

or reason or any such averment in the application. Therefore,

act of respondent No.3 suffers from arbitrariness and takes away

the valuable legal right of the petitioner. As such, is not

sustainable in law. On the date the order contained in Patna High Court CWJC No.1556 of 2019 dt.18-02-2021

Annexure-5 the petitioner had already completed 50 years of

age and 30 years of qualifying service. In the aforesaid

circumstance, either the authorities should have accepted the

prayer of the petitioner or would have rejected the same in toto

but they could not have treated the same as application of

resignation. The petitioner had clearly stated in his application

dated 28.04.2006 that if there is any technical difficulty in

accepting the prayer of voluntary retirement the authority may

make him to retire from the date of prayer and the consequence

would follow. However, since there was no prayer for

resignation, the authority could not have without hearing the

petitioner treated the said application as application for

resignation.

6. Mr. Birju Prasad, learned counsel appearing for

State-respondents, has drawn attention of the Court towards

order passed by the Principal of Patna Medical College

contained in Annexure-B dated 31.10.2005, whereby the

Principal has rejected the prayer of the petitioner contained in

letter dated 31.10.2005. Therefore, according to learned

counsel his application was already rejected on the date of

submission itself.

7. Since the Principal of Patna Medical College Patna High Court CWJC No.1556 of 2019 dt.18-02-2021

was not a competent authority to reject or allow the prayer of

the petitioner for voluntary retirement. Hence, order contained

in Annexure-B is without jurisdiction.

8. It would be worth to reproduce the prayer of the

petitioner as contained in letter dated 31.10.2005 at Annexure-

1/Annexure-A and subsequent reminder dated 28.04.2006 at

Annexure-2/Annexure-D :

Annexure-1

"From: Dr. Vinoy Asst Prof (Gen Surg).

Patna Medical College, Patna To

Secretary Dept of Health (Medical Education), Government of Bihar; Vikas Bhavan, Patna-800 001 Through: Proper Channel

Subject: Permission for voluntary retirement from service and sanction of retirement benefits. Respected Madad

Most respectfully, I beg to state that:

1. I am serving Govt. of Bihar since 07.09.1987 (service

history attached).

2. Lately, due to certain personal & family reasons, I am

finding it extremely difficult to discharge my job

responsibilities.

3. Therefore, kindly permit to voluntarily retire from service

with effect from 01.02.2006.

Patna High Court CWJC No.1556 of 2019 dt.18-02-2021

4. Kindly also sanction extraordinary leave for the

intervening period- 01.11.05 to 31.01.2006

I shall remain ever grateful for these kind acts.

Yours obediently,

(Vinoy) Asst Prof (Gen Surg), Patna Medical College, Patna"

31.10.2005

Annexure-2

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lgk;d izk/;kid ¼lkekU; ltZjh½ iVuk esfMdy dkyst] iVukA lsok esa% lfpo LokLF; fpfdRlk f"k{kk i0 d0 ,oa ns0 fi0 foHkkx fcgkj ljdkj] iVukA }kjk% izkpk;Z] iVuk esfMdy dkyst iVukA fo'k;% lsok fuo`fr gsrq vkosnuA iVuk] fnukad 28-04-06 egk"k;] eSaus vius vkosnu fnukad 31-10-05 }kjk fnukad 01- 02-06 ls LoSfPNd lsok fuo`fRr rFkk fuo`fRr rFkk varjky vof/k ¼fnukad 01-11-05 ls 31-01-06½ ds vlk/kkj.k vodk"k dh izkFkZuk dh FkhA vHkh rd eq>s ,slh lqpuk izkIr gwbZ gS fd esjh LoSfPNd lsok fuo`fRr dh izkFkZuk ljdkj }kjk Lohd`r dh xbZ gS vFkok ughA bl dze es eS iqu% fouezrkiqoZd fuosnu djuk pkgWwxk fd O;fDrxr ikfjokfjd ifjfLFkfr;ksa ds pyrs eq>s lsok djus es dfBukbZ gSA vr% iqu% vuqjks/k gS fd ljdkj dks ;fn esjh LoSfPNd lsok fuo`fRr dh izkFkZuk dks Lohdkj djus esa dksbZ rduhdh dfBukbZ vk jgh gS rks ljdkj eq>s lsok fuo`r djus dh d`ik djsA izkpk;Z iVuk esfMdy dkyst iVuk ls vuqjks/k gS fd esjs vkosnu dks Lohd`r djus gsrq ljdkj dks viuh vuq"kalk lalqfpr djus dh d`ik djsaA bl vkosnu dh ,d vfxze izfr ljdkj dks Hkh lefiZr dh tk jgh gSA fo"oklHkktu Patna High Court CWJC No.1556 of 2019 dt.18-02-2021

g0 vLi'V 28-04-06 ¼fou;½ i=kpkj dk irk ,&54] ih0 lh0 dkyksuh dadM+ckx] iVuk & 800020"

9. It is evident that the authorities did not take any

decision on the prayer of the petitioner for voluntary retirement

made in the year 2006 till 2013 and in 2013 the petitioner was

fulfilling the conditions for voluntary retirement as per Rule

74(b) of the Bihar Service Code, the petitioner had already

completed 50 years of his age for qualifying to make prayer for

voluntary retirement. In the circumstance, the authority could

have accepted the prayer of the petitioner or could have rejected

the same but they could not have treated the same as an

application of resignation.

10. Hence, that portion of the impugned

notification dated 02.01.2013 contained in Annexure-5 stands

hereby quashed whereby the prayer of the petitioner was treated

as prayer for resignation with retrospective effect. It is directed

that the respondents shall treat the prayer of the petitioner as

prayer for voluntarily retirement and that would be effective

from the date of order contained in Annexure-5, i.e., 02.01.2013,

and not from any other retrospective date. The petitioner shall

be entitled for all the retiral benefits according to law. The Patna High Court CWJC No.1556 of 2019 dt.18-02-2021

respondent authorities shall ensure payment of retiral benefit to

the petitioner within three months.

11. Accordingly, this application stands allowed.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                NAFR
CAV DATE
Uploading Date          19.02.2021
Transmission Date