Kanhaiya Singh vs The State Of Bihar
2023 Latest Caselaw 994 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                        Letters Patent Appeal No.1140 of 2019
                                          In
                    Civil Writ Jurisdiction Case No.20149 of 2018
     ======================================================

Kanhaiya Singh, S/o Late Ram Ayodhya Singh, Resident of near Sahid Bhawan, Mahavir Tola, P.S. Aarah, Nawada, District Bhojpur, at present posted as Medical Officer, Sub Divisional Hospital, Jhanjharpur, Madhubani ... ... Appellant/s Versus

1. The State of Bihar

2. Principal Secretary, Health and Family Welfare Department, Govt. of Bihar, Patna.

3. Joint Secretary, Health and Family Welfare Department, Govt. of Bihar, Patna.

4. Additional Secretary, Health Department, Grievance Redressal Cell, Govt.

of Bihar, Patna.

5. Under Secretary, Health Department, Govt. of Bihar, Patna.

6. Deputy Secretary, Health Department, Govt. of Bihar, Patna.

7. District Magistrate, Madhubani.

8. Civil Surgeon-cum-Chief Medical Officer, Madbubani.

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

For the Appellant/s : Mr. Ashok Kumar Choudhary, Sr. Advocate Mr. Rajiv Kumar Singh, Advocate For the Respondent/s : Mr. S. D. Yadav, AAG-9 Mr. Anil Kumar Verma, AC to AAG-9 ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE HARISH KUMAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE HARISH KUMAR)

Date : 15-03-2023

Heard Mr. Ashok Kumar Choudhary, learned senior

counsel, duly assisted by Mr. Rajeev Kumar Singh and Mr.

Akshansh Ankit, learned counsel for the writ petitioner-

appellant. The State is represented by Mr. S.D. Yadav, learned

AAG-9.

Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

2. The challenge in the present Letters Patent

Appeal is to an order dated 31.07.2019 passed by the learned

Single Judge in C.W.J.C. No. 20149 of 2018.

3. The sole ground for challenge made in the

present appeal as canvassed by the learned senior counsel is that

while passing the order under appeal, the learned Single Judge

failed to appreciate the fact that on the date of application for

"Voluntary Retirement" submitted on behalf of the writ

petitioner-appellant on 03.07.2010, there was no impediment to

grant the benefit under V.R.S., as the writ petitioner-appellant

had completed 22 years of service and had already attained the

age of 50 years and he was not under suspension, hence in view

of the settled proposition of law as per Rule 74(b) of the Bihar

Service Code prescribing the provision of voluntary retirement

by way of three months notice is automatic and the appellant

cannot be denied the privilege of voluntary retirement.

4. It is vehemently contended at the bar that a bare

reading of Rule 74(b)(i) of the Bihar Service Code makes it

apparent that the option for voluntary retirement lies with the

employee to initiate the process. The only right given to the

Government is, if the officer is under suspension to deny such

option for voluntary retirement and it could also do so by

express refusal during the notice period and if in the Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

interregnum period of three months, the claim of the employee

is not negated, the government servant shall be deemed to have

voluntary retired from service. Once the relationship of master

and servant ceases, the question of initiating any departmental

proceeding against him, therefore, simply does not arise and is a

nullity.

5. In order to buttress the aforesaid submission,

heavy reliance has been made on orders/judgments passed by

the learned Single Judge of this Court in the case of Shah Azad

Siddiqui (Dr.) Versus The State of Bihar and others, reported

in 2008 (4) PLJR 194, Shah Waliullah Tarique Vs. the State

of Bihar and others, reported in 2010 (1) PLJR 371. Further

reliance has been made on a judgment passed in the case of

Vijay Kumar Vs. The State of Bihar and others and other

analogous cases, reported in 2015 (2) PLJR 625, as also the

judgment dated 03.07.2018 passed in C.W.J.C. No. 1641 of

2016 [Dr. (Smt) Swarn Lata Sinha Vs. The State of Bihar and

Others).

6. On the strength of the aforesaid judgments, he,

emphatically, submits that in fact, even the pendency of the

departmental proceeding cannot be made a ground of refusal to

the prayer of voluntary retirement in view of the provisions

made under Rule 74(b)(i) of the Code read with Government Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

Circular No. 6190 dated 27.04.1979 and moreover the order of

punishment inflicted upon the writ petitioner-appellant, as

contained in Memo No. 915 (9) dated 09.10.2014 for

unauthorized absence from 26.12.2005 to 18.05.2010 was

quashed by this Court vide order dated 14.03.2018 passed in

C.W.J.C. No. 12145 of 2017. Hence, the petitioner would be

treated to be in continuous service till 19.05.2010 as also on the

date on which the writ petitioner-appellant submitted his VRS.

Therefore, in any view of the matter the rejection of the prayer

of the writ petitioner-appellant for VRS vide order as contained

in Memo No. 624(3) dated 16.08.2018 is illegal and wholly

without jurisdiction.

7. On the other hand, learned counsel appearing on

behalf of respondent State submits that as the prayer of

voluntary retirement as provided under Rule 74(b)(i) of the

Code is incumbent upon fulfillment of certain stipulation

including, completion of 20 years of service, but as the writ

petitioner-appellant, had remained unauthorized absent since

26.12.2005 to 18.05.2010, he has not completed 20 years of

service, hence there was no question of acceptance of VRS,

apart from the fact that the writ petitioner-appellant was facing

departmental proceeding during the said period.

8. This Court thinks it apt to narrate the short matrix Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

of the facts for proper appreciation of the matter. The writ

petitioner-appellant had joined Medical Services of the State of

Bihar on 26.03.1988, as Medical Officer and after serving at

different places while he was working as Medical Officer at

Primary Health Centre, Dhuraiya, Banka on account of illness of

his wife he went on leave, but could not join office after

completion of the leave and he remained absent from

26.12.2005 to 18.05.2010.

9. Admittedly after long unauthorized absence the

petitioner submitted his joining on 19.05.2010 and the same was

duly accepted. However, in the meantime, on account of

unauthorized absence, as stated above, vide Resolution No. 1067

(9) dated 09.10.2009, a departmental proceeding has been

initiated against the writ petitioner-appellant. It is also submitted

that soon after his joining on 19.05.2010 and after serving few

months, he submitted application for his voluntary retirement on

03.07.2010.

10. The departmental proceeding concluded in

awarding of punishment to the writ petitioner, which was

challenged by him in C.W.J.C. No. 12145 of 2017. The order of

punishment was quashed by this Court vide order dated

14.03.2018, whereafter the writ petitioner again filed an

application for his voluntary retirement and when the aforenoted Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

application remained pending for a long time, the writ petitioner

in the meantime approached before this Court in C.W.J.C. No.

10660 of 2017. The aforesaid writ petition was disposed of with

a direction to consider the representation of the writ petitioner-

appellant with respect to grant of voluntary retirement within a

time prescribed. In the light of the order, aforesaid, the

representation was considered and the department came out with

an order, as contained in Memo No. 624 (3) dated 16.08.2018

rejecting the application for VRS on the ground that the writ

petitioner does not qualify the minimum required service period

of 20 years.

11. It would be worth mentioning here that during

the pendency of C.W.J.C. No. 20149 of 2018, the department

again proceeded against the writ petitioner-appellant for his

unauthorized absence with effect from 20.11.2010 to

10.08.2018, which further culminated into order of punishment,

as it has been informed to this Court on the last day of hearing.

12. This Court has given anxious consideration over

the submissions made on behalf of the learned counsel for the

parties and the materials available on record. Before parting

with the conclusion, it would be proper to quote Rule 74 of the

Code, which reads as under:

74.(a) The State Government may Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

require any Government servant who has completed twenty one years of duty and twenty-five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service. Where any Government servant is so required to retire no claim to any special compensation shall be entertained.

(b)(i) Notwithstanding anything contained in the preceding sub-rule a Government servant may, after giving at least three months previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.

Provided that no Government servant under suspension shall retire from service except with the specific approval of the State Government:] Provided further that in case of the officers and servants of the Patna High Court (including those of Circuit Bench at Ranchi) under the Rule making authority of the Chief Justice, no such officer and servant under suspension shall retire from service except with the specific approval of the Justice.] [(ii) The appointing authority Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

concerned may after giving a Government servant at least three month's previous notice in writing, or an amount equal to three month's pay and allowance in lieu of such notice, require him in public interest, to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.] [(iii) A Government servant who retires voluntarily is required to retire in public interest under this Rule on attaining the age of 50 years, or completing qualifying service of 30 years, shall be entitled to retiring pension and death-cum-retirement gratuity.]"

13. From bare reading of Rule 74(b)(i) of the Bihar

Service Code there could not be any iota of doubt that the

request of voluntary retirement could be rejected only on

account of non-fulfillment of the stipulations, aforenoted, and if

the officer is under suspension, such option of the employee for

voluntary retirement can be denied.

14. It would be worth mentioning here that

subsequently the Government of Bihar in the Department of

Finance vide Memo No. 6190 dated 27.04.1979 came with a

resolution in the matter of VRS, which provides that the scheme

was purely voluntary for which the employee had to come Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

forward, who have already completed 20 years of qualifying

service. It is, inter alia, also stipulated that such an offer could

be withdrawn by the employee within a period of three months,

but if the Government did not pass any order on the application

for VRS under the Rule, the officer shall be deemed to have

voluntarily retired from service after completion of three months

from the date of application, subject to the fulfillment of

required conditions.

15. This Court has also gone through the judgments

relied upon by the learned senior counsel for the writ petitioner-

appellant wherein the learned Single Judge while dealing with

the identical issue has held that Section 74(b)(i) of the Bihar

Service Code makes it apparent that the option lies with the

employee to initiate the process and only right given to the

Government is, if the officer is under suspension, to deny such

option for voluntary retirement and it could also do so by

express refusal during the notice period. That this was distinct

from the powers of the employer under Rule 74(b)(ii) to

terminate the services after three months' previous notice or to

pay in lieu thereof. The Finance Department Memo dated

27.04.1979 provides that the scheme was purely voluntary and

for which the employee had to come forward. That such an offer

could be withdrawn by the employee within a period of three Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

months, but if the Government did not pass any order on the

application for VRS under the Rule, the officers shall be deemed

to have voluntarily retired from service after completion of three

months from the date of the application. In the case of Vijay

Kumar (supra) the learned Single Judge having taken note of the

earlier judgment passed by the learned Single Judge held in

para. 58 and 59, which are as follows:

"58. A question would, therefore, arise whether such order passed by the Government is in accordance with the provisions made in Rule 74 of Bihar Service Code? There would be no difficulty in holding that such rejection of the application of the petitioner for his voluntary retirement was in teeth of the provisions of Rule 74(b)(i) of the Bihar Service Code. As a matter of fact from the circular of the State Government dated 2.12.2013 on the subject of voluntary retirement it would be also found that such request of voluntary retirement could be rejected only on the ground of pendency of the departmental proceeding or any audit objection or his not qualifying twenty years of service. To that extent it would be relevant to quote the Government circular dated 2.12.2013 which reads as follows:

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izk;% ;g ns[kk tkrk gS fd foHkkx esa ,sfPNd lsok fuo`fr ds ekeys ds fu'iknu esa dkQh foyEc gks tkrk gS] QyLo:i ekuuh; mPp U;k;ky; esa ljdkj dks fo'ke ifjfLFkfr dk lkeuk djuk iM+rk gS A ekuuh; mPp U;k;ky; }kjk ,sls dbZ ekeyksa esa foHkkx }kjk rRijrk ls fu'iknu djus dh vko';drk ij cy fn;k x;k gS A 2& fcgkj lsok lafgrk ds fu;e & 74 ¼[k½ ,oa foRr foHkkxh; ifji= la[;k&6190 fnukad 27-04-

1979 esa fufgr vuqns'kksa ds vkyksd esa 20 o'kZ dh vgZd lsok iwjh djus vFkok 50 o'kZ dh vk;q izkIr dj ysus ds mijkUr ;fn dksbZ fpfdRld fu;qfDr izkf/kdkjh dks de&ls&de rhu ekg igys fyf[kr lwpuk nsdj ,sfPNd lsok fuo`fr dk vkosnu nsrs gSa rks vkarfjd LoPNrk ,oa vads{k.k vkifRr vkfn dh lwpuk dze'k% iz'kk[kk&9 ,oa iz'kk[kk&8 ls izkIr dj rhu ekg ds vUnj ml vkosnu dk fu'iknu djuk vko';d gS A blfy, ;g vko';d gS fd ,sfPNd lsok fuo`fr ls lacaf/kr vkosnu izkIr gksus ds ,d lIrkg ds vUnj lafpdk miLFkkfir dj iz'kk[kk&9 ,oa iz'kk[kk&8 ls vkarfjd LoPNrk ,oa vads{k.k vkifRr dh fLFkfr izkIr dj yh tk; A iz'kk[kk&9 ,oa 8 rhu fnuksa ds vUnj vkarfjd LoPNrk rFkk vads{k.k vkifRr dh fLFkfr dks vafdr dj lacaf/kr iz'kk[kk esa lafpdk ykSVk nsaxs A 3&lacaf/kr iz'kk[kkvksa ds izHkkjh voj lfpo dks ;g O;fDrxr ftEesnkjh nh tkrh gS fd gj 15 fnu ij os vius v/khuLFk iz'kk[kkvksa esa izkIr LoSfPNd lsok fuo`fRr ls lacaf/kr vkosnuksa ,oa lafpdkvksa dh fLFkfr dh tkudkjh izkIr djsa vkSj mlij le;&lhek ds vUnj Rofjr dkjZokbZ djsa A 4& lacaf/kr lHkh fu;a=h inkf/kdkjh dks Hkh ;g funs'k fn;k tkrk gS fd ,sfPNd lsok fuo`fr ls lacaf/kr lHkh vkosnuksa ij vius Li'V earO; ds lkFk ,d lIrkg ds vUnj foHkkx dks vxzlkfjr dj nsaA 5& ;fn tkWap ds dze esa ;g ik;k tkrk gS fd ,sfPNd lsok fuo`fr izkIr djus okys fpfdRlk inkf/kdkjh Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

ij dksbZ foHkkxh; dk;Zokgh lapkfyr gS ;k vads{k.k vkifRr yafcr gS ;k mudh vgZd lsok fu;ekuqlkj 20 o'kksZ dh ugha gS fQj Hkh muds vkosnu dks fuLrkfjr djrs gq, mUgsa ;g lwpuk ns nh tk;sxh fd vkids vkosnu dks bl dkj.k fujLr dj fn;k x;k gS A 6& vxj ,sfPNd lsok fuo`fr ds laca/k esa izkIr vH;kosnuksa ds fu'iknu esa fdlh Hkh rjg dk foyEc n`f'Vxkspj gksrk gS rks foyEc ds fy, O;fDrxr ftEesokjh fu/kkZfjr djrs gq, fu;ekuqlkj muij dkjZokbZ dh tk;sxh A 7& izLrko esa iz/kku lfpo] LokLF; dk vuqeksnu izkIr gS A [email protected]& lat; dqekj ljdkj ds la;qDr lfpoA"

59. A question would arise that if the petitioner's application dated 21.6.2012 was kept pending for fifteen months before its being rejected on 24.9.2013 who is responsible for such delay? Secondly, the paucity of teachers in the Government Medical College being not a ground referable to the provisions of Rule 74(b)(i) of the Bihar Service Code such rejection infact wholly uncalled for and per se illegal. In the considered opinion of this Court Rule 74(b)(i) of the Bihar Service Code does not brook of any two interpretation and in fact this aspect of the matter stands well settled in the line of catena of decision of the Apex Court and of this Court as referred above that the provision of voluntary retirement by way of three months notice is automatic and the incumbent cannot be refused the privilege of voluntary retirement save and except when he has been placed under suspension. In fact even pendency of the departmental proceeding Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

and/or audit objection as per circular of the department quoted above cannot be made a ground in view of the provisions made in Rule 74(b)(i) of the Bihar Service Code."

16. While summing up the aforesaid judgment, the

learned Single Judge in para. 59 of the judgment has come to the

conclusion that in fact even pendency of the departmental

proceeding and/or audit objection as per Circular of the

department cannot be made a ground for refusal of voluntary

retirement in view of the provisions made in Rule 74(b)(i) of the

Code.

17. This Court, however, does not accept the

aforesaid proposition of law to the extent whereby the learned

Single Judge came to the conclusion that pendency of

departmental proceeding cannot be made a ground in refusing

application for voluntary retirement in view of the provisions of

Rule 74(b)(i) of the Code and the three months notice is

automatic and it is the incumbent upon the concerned

department to accept the request of voluntary retirement, save

and except the employee is under suspension.

18. It is needless to observe that the suspension of

an employee is always incumbent upon, inter aliea, in

contemplation of a departmental proceeding, pendency of the

departmental proceeding or lodging of a criminal case, as has Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

been stipulated in Rule 9 of the Bihar Government Servants

(Classification, Control and Apppeal) Rules, 2005, hence the

"suspension" can never be read in isolation in a narrow compass

otherwise any unscrupulous ingenious employee/officer in order

to get rid of rigours of departmental proceeding and penalty may

surreptitiously applied for voluntary retirement and after three

months he will come up with a plea that as he was not under

suspension, hence after completion of three months period, his

request shall be deemed to be automatically accepted for

voluntarily retirement resulting into cessation of the relationship

of employer and employee; Therefore, the continuation of the

departmental proceeding could not arise.

19. This Court afraid to accept such interpretation.

The circular dated 02.12.2013 on the subject of voluntary

retirement issued by the State Government is clarified that the

request of voluntary retirement could also be rejected on the

ground of pendency of the departmental proceeding or any audit

objection and the said clarification still holds the field good.

However, the said circular obligates the department concerned

to dispose of the application by assigning the reason for doing

so. The interpretation of the word "suspension" confining it only

in the strict sense of suspension, would certainly defeat the very

intent and object of the clarification infused in the circular dated Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

02.12.2013 and create an open filed for unscrupulous ingenious

employees/officers for evading from the clutches of the

departmental proceeding or its outcome.

20. Learned single Judge while considering the

issue, in question, rightly answered that the filing of the

application for VRS does not ipso facto vest the right to grant

relief of VRS, as it depends on several factor, as one of the

factor whether he is facing departmental proceeding.

21. The deemed acceptance of voluntary retirement

comes only upon the fulfillment of requirements as stipulated

under Rule 74(b)(i) of the Code read with the resolution issued

by the Finance Department, Government of Bihar dated

27.04.1979, as also the Circular dated 02.12.2013 issued by the

Government of Bihar in the Department of Health.

22. In view of the aforesaid discussions, this Court

does not find any reason to interfere in the order under appeal.

However, the writ petitioner-appellant is at liberty to assail the

outcome of the departmental proceeding before the competent

authority/court and in case of quashment of the resultant

outcome or exoneration, the application for voluntary retirement

of the writ petitioner - appellant shall be considered afresh in

accordance with law after taking into consideration the fact that

the unauthorized absence from 26.12.2005 to 18.05.2010 is no Patna High Court L.P.A No.1140 of 2019 dt.15-03-2023

more in existence on account of the order of this Court dated

14.03.2018 passed in C.W.J.C. No. 12145 of 2017 in the earlier

round of litigation, hence order under challenge in the writ

petition as contained in Memo No. 624 (3) dated 16.08.2018 has

no leg to stand in the law and accordingly held to be bad and not

sustainable.

23. In view thereof, the present appeal does not

require any interference and the same stands disposed off with

certain modification observed hereinabove.

(P. B. Bajanthri, J)

(Harish Kumar, J)

uday/-

AFR/NAFR             NAFR
CAV DATE             10.02.2023
Uploading Date       18.03.2023
Transmission Date