IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 899 of 2010 (O&M) Date of Decision: August 3, 2010 State of Punjab and others …Appellants Versus Dr. Bhushan Lal Malhotra …Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr. Suvir Sehgal, Additional Advocate General, Punjab, for the appellants. 1. To be referred to the Reporters or not? Yes 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 26.4.2010, passed by the learned Single Judge in C.W.P. No. 1796 of 2010. The learned Single Judge has issued direction to the appellant-State of Punjab to accept the request of the petitioner-respondent for voluntary retirement forthwith as the notice period has already expired. A further direction has also been issued to issue necessary orders of his retirement from the due date within a period of two weeks from the date of receipt of a certified copy of the order. The petitioner- respondent has been held entitled to all the consequential/pensionary benefits as per rules. The facts which are not in dispute and relevant for disposal of the LPA No. 899 of 2010 (O&M) controversy raised may first be noticed. The writ petitioner-respondent was appointed as Medical Officer on short term basis vide order dated 26.5.1987 (P-1). He joined the service on 11.9.1987. He continued to work on short term service from 11.9.1987 to 25.6.1992. His services were regularised w.e.f. 26.6.1992, vide order dated 31.1.1995 (P-2). The State of Punjab framed premature retirement rules, namely, the Punjab Civil Services (Premature Retirement) Rules, 1975 (for brevity, ‘the Rules’). On 14.10.2009, the writ petitioner-respondent sought voluntary retirement in terms of Rule 3(3) of the Rules and requested that he may be retired w.e.f. 15.1.2010 (P-3). When no response was received by him, he again sent a reminder on 23.1.2010 (P-4). Even then when no heed was paid to his request, he submitted his departure report dated 1.2.2010 and requested the appellants to release his retiral benefits. Thereafter, he filed CWP No. 1796 of 2010. The learned Single Judge disposed of the said petition along with other similar petitions. After referring to the provisions of Rule 3 of the Rules, in para 10 of the judgment learned Single Judge has formulated the following question of law: “Whether or not the request for ‘voluntary retirement’ can be withheld by the appropriate authority without assigning reasons and/or even for unjust, unfair and arbitrary reasons? Learned Single Judge then opined that the requirement of acceptance of request for ‘voluntary retirement’ in the case of an employee who has completed 20 years’ service does not clothe the appropriate authority with an absolute power to act arbitrarily or at whims and fancies. The plea that the writ petitioner had not completed 20 years ‘regular service’ was also raised before the learned Single Judge by the appellants. In that regard, it has been found that the matter is no longer res integra and covered by the Division Bench judgment of this Court in the case of Dr. Anil Kumar Saluja v. State 2 LPA No. 899 of 2010 (O&M) of Punjab and others (CWP No. 12179 of 2008, decided on 1.8.2008). 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-State of Punjab has filed the instant appeal. The primary ground pleaded in the instant petition is that the facts of the present case are distinct from the other petitions which have been disposed of by the learned Single Judge. According to the appellants the writ petitioner-respondent has not completed the period of qualifying service. The request for voluntary retirement was still pending consideration at the time when the writ petitioner-respondent chose to file the writ petition. It has also been submitted that interpretation of Rule 3 of the Rules is subject matter of consideration of this Court in LPA No. 396 of 2010 (State of Punjab v. Dr. Harbir Singh Dhillon, wherein operation of a similar order passed by the learned Single Judge has been stayed. Mr. Sehgal, learned Additional Advocate General, Punjab, has argued that the principle of larger public interests are implicit in Rule 3(3) of the 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. 3 LPA No. 899 of 2010 (O&M) Having heard learned State counsel we are of the considered view that there is no merit in the instant appeal warranting its admission. Learned counsel has not been able to cite any judgment contrary to the one rendered by the Division Bench in the case of Dr. Anil Kumar Saluja (supra), relevant extract of which has been quoted and relied upon by the learned Single Judge. The Division Bench in clear terms has held that ad hoc / work charged or any other service followed by regularisation has to be treated as qualifying service for the purpose of pension. In that regard the Division Bench has placed reliance on a Full Bench judgment of this Court in the case of Kesar Chand v. State of Punjab, 1988 (2) PLR 23, declaring Rule 3.17 of the Rules as ultra vires which exclude the period of work charge and ad hoc service from the definition of expression ‘qualifying service’. In the present case, it is conceded position that the writ petitioner-respondent was appointed as Medical Officer on short term basis vide order dated 26.5.1987. He joined the service on 11.9.1987 and continued to work as such up to 25.6.1992. On 31.1.1995, his services were regularised w.e.f. 26.6.1992. He sought voluntary retirement on 14.10.2009 in terms of Rule 3(3) of the Rules and requested that he may be retired w.e.f. 15.1.2010. By counting the period of short term service rendered by the writ petitioner no doubt is left that he has completed more than 20 years of service at the time when he sought voluntary retirement and the judgment in the case of Dr. Anil Kumar Saluja (supra) is fully applicable. So far as the plea of interpretation of Rule 3 of the Rules is concerned, it would first be necessary to examine Rule 3(3) of the Rules, which is applicable to the facts of the present case and the same reads as under: “ 3(3)(a) At any time after an employee has completed 4 LPA No. 899 of 2010 (O&M) 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 arises 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 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 5 LPA No. 899 of 2010 (O&M) 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 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, 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. For the reasons aforementioned, the appeal fails and the same is dismissed. (M.M. KUMAR) JUDGE (MEHINDER SINGH SULLAR) August 3, 2010 JUDGE 6 LPA No. 899 of 2010 (O&M) Pkapoor 7