LPA No. 396 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 396 of 2010 (O&M) Date of Decision 04.08.2010 State of Punjab and others -----Appellants Versus Dr. Harbir Singh Dhillon ---Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. Suvir Sehgal, Addl. A.G., Punjab for the appellant-State of Punjab. Mr. Aashish Chopra, Advocate for the writ petitioner-respondent. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. The instant appeal filed under Clause X of the Letters Patent is directed against the judgment dated 28.05.2009 passed by the learned Single Judge in C.W.P. NO. 3264 of 2009 by issuing direction to the appellant-State of Punjab to pass an order of voluntary retirement concerning the writ petitioner-respondent who had applied for voluntary retirement in pursuance of Rule 3(3) of Punjab Civil Service (Premature Retirement) Rules, 1975 (for brevity 'the 1975 Rules'). The facts which are not in dispute and relevant for LPA No. 396 of 2010 (O&M) -2- disposal of the controversy raised may first be noticed. The writ petitioner-respondent was appointed as Medical Officer on ad hoc basis on 24.03.1987. Later on, he was appointed on regular basis on 31.08.1988 through Punjab Public Service Commission. The writ petitioner-respondent sought voluntary retirement in pursuance of Rule 3(3) of the 1975 Rules but his request was rejected on 27.06.2008. Thereafter he again requested by moving another application on 4.12.2008. The aforesaid request was again rejected by an order dated 19.01.2009 (Annexure P11), which was impugned before the learned Single Judge. The basis for rejection of the request was that due to scarcity of the doctors in the Health Department, granting permission for voluntary retirement to them would create difficulty in providing health facilities to general public in Government Hospital/ Dispensaries. Accordingly, public interest has been invoked as a ground for declining the request made by the writ petitioner-respondent. The learned Single Judge has placed reliance on a Division Bench judgment of this Court rendered in C.W.P. No. 4150 of 2008 decided on 22.12.2008 and concluded that the matter was squarely covered by that judgment. Accordingly, the writ petition has been allowed in the same terms. It follows that the order dated 19.01.2009 (Annexure P11) stood quashed and a direction was issued to the appellant-State of Punjab to pass an appropriate order for voluntary retirement in respect of writ petitioner-respondent within a period of two months from the date of receipt of a certified copy of that order. Feeling aggrieved, appellant- LPA No. 396 of 2010 (O&M) -3- State of Punjab has filed the instant appeal. Mr. Sehgal, learned Addl. A.G. Punjab, has argued that the principle of larger public interests are implicit in Rule 3(3) of the 1975 Rules which is primary consideration for granting approval to a request for voluntary retirement. According to the learned State counsel, Rule 3(3)(b) is mandatory inasmuch as the notice of voluntary retirement given under the aforesaid sub-rule requires acceptance by the appropriate authority. In other words, without acceptance of notice by the appropriate authority, the notice for premature retirement cannot become operative. He has further argued that on account of scarcity of doctors, the order passed by the appellant-State of Punjab is in larger public interest and it must be upheld. Mr. Aashish Chopra, learned counsel for the writ petitioner-respondent has, however, submitted that neither any enquiry was pending nor any charge-sheet was issued to the writ petitioner and in the absence of such a situation, there was no justification for the appellant-State to decline the request of the writ petitioner-respondent for a premature retirement. According to the learned counsel for the writ petitioner-respondent, even the appellant-State of Punjab is entitled to give three months' notice to prematurely retire an employee. He has emphasised that a conjoint reading of Rule 3 speaks about the mutuality in the Rules. He has further argued that the appellant-State of Punjab has passed an order of premature retirement in respect of various doctors, which LPA No. 396 of 2010 (O&M) -4- have been revealed in para 3 of the application numbered as C.M. No. 2340-LPA of 2010. Therefore, the submission made is that even the plea of scarcity of the doctors would not be acceptable as in respect of 8 doctors named in the aforesaid para, order of voluntary retirement has been passed. The name of those Doctors are as under: Sr. No. Name of Doctor Date of Joining Service/ Service No. Date of grant of VRS by the Govt. without any order of the Court 1 Dr. Raman Kumar Singla 08.06.1987/5809 13.03.2009 2 Dr. Jatinder K. Aggrawal 12.06.1987/5904 20.08.2009 3 Dr. Anil Dewan 11.06.1987/5923 20.08.2009 4 Dr. Jagir Singh /5120 28.04.2008 5 Dr. Suneeta Goyal /6805 18.03.2009 6 Dr. Jagdish Singh /6790 31.03.2009 7 Dr. Gurbachan Singh /5235 27.01.2010 8 Dr. Maninder Pal Singh /6070 21.03.2010 Learned counsel for the writ petitioner-respondent has further pointed out that Dr. Sukhdev Singh, Medical Officer had applied for voluntary retirement and his request was initially rejected on 20.03.2009 on the ground of scarcity of doctors. However, later on, he was given premature retirement w.e.f. 01.02.2009 on the ground that fresh recruitment is taking place. Therefore, the order of rejection suffers from hostile discrimination. Having heard learned counsel for the parties, we find that it would first be necessary to examine Rule 3(3) of the 1975 Rules, which is applicable to the facts of the present case and the same reads as under: LPA No. 396 of 2010 (O&M) -5- “3(3)(a) At any time after an employee has completed twenty years of qualifying service, he may, by giving notice of not less than three months in writing to the appropriate authority retire from service. (b) The notice of voluntary retirement given under this sub-rule shall require acceptance by the appropriate authority. (c) Where the appropriate 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 of expiry of the said period.” A perusal of the aforesaid Rule shows that an employee after completing 20 years of qualifying service may serve a notice of not less than three months to the appropriate authority expressing his intention to retire from service on the expiry of the three months. According to Clause (b), the notice of voluntary retirement given under Clause (a) requires acceptance by the appropriate authority, which is mandatory. A perusal of the Clause (c) shows that if the appropriate authority allows three months' period to lapse then the retirement shall become effective from the date of expiry of the said period. The question which arise for consideration is as to the cases in which the appellant-State of Punjab could reject the request of an employee who has completed 20 years of service. However, there LPA No. 396 of 2010 (O&M) -6- are no guidelines provided in the Rules. The expression 'public interest' which figures in Rule 3.1(a), is missing from Rule 3(3). Rule 3.1(a) deals with the cases of premature retirement arming at the State Government with a right to retire an employee prematurely in larger public interest. Those employees who are corrupt, inefficient or otherwise dead wood could be shown the door because it would serve a larger public interest. However, such an expression is missing when we read Rule 3(3), which gives a right to the employee to seek voluntary retirement after 20 years of service, the question then is in which cases the State Government could refuse to the request for voluntary retirement. One category of cases which may justify refusal is where departmental proceedings for infliction of major penalty might be pending because an employee may not be permitted to get away with misconduct embezzlement and misappropriation. Therefore, the argument of Mr. Sehgal, learned State counsel that notice of voluntary retirement requires acceptance by the appropriate authority have to be construed in the aforesaid fashion. In a given case of alleged misconduct, the authority may be justified in rejecting the request to the pre-mature retirement but not on the ground that there is scarcity of a particular class of employees. We cannot accept the contention that requirement of permission in the Rule is mandatory particularly when Clause (c) of Rule 3 says that if appropriate authority has not refused the permission for retirement before the expiry of the 90 days period then the retirement become effective from the date of expiry of the said period. Clause (c) in fact LPA No. 396 of 2010 (O&M) -7- takes away mandatory character of the Rule. Therefore, the argument that the State can put up any ground for rejecting the prayer of an employee does not commend itself to us. In the present case, not only the request of the writ petitioner has been declined on an unacceptable ground but there is hostile discrimination as in a number of cases, the voluntary retirement has been permitted on the ground that recruitment of doctors is going on as is pointed out in preceding paras. It violates Article 14 and 16(1) of the Constitution. Even on the facts, appellant- State would not be justified in declining the request made by the writ petitioner-respondent. Therefore, the appeal is wholly without merit and is, thus, liable to be dismissed. For the reasons aforementioned, the appeal fails and the same is dismissed. (M.M. KUMAR) JUDGE (A.N. JINDAL) JUDGE August 4, 2010 Atul