1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.11144 of 2011 and M.P.(MD)No.1 of 2011 A.Meenakshi, Sector Health Nurse : Petitioner Vs. 1.The Director, Public Health and Preventive Medicine, Office of the Director Medical Department, Chennai-6. 2.The Deputy Director, Public Health Department, Madurai. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order in e/f/vz; .73606/g/neh3-,U3/11, dated 18.08.2011 passed by the first respondent herein and to quash the same as illegal and direct the first respondent herein to pass orders retiring the petitioner from her service as Sector Health Nurse voluntarily with effect from 30.09.2011. For Petitioner : Mr.C.Sundaravadivel For Respondents : Mr.S.Chandrasekar Government Advocate ORDER A Sector Health Nurse, on the verge of retirement, made an application dated 13.06.2011 to the Director of Public Health and Preventive Medicine, Chennai, the first respondent herein, to permit her to go on voluntary retirement, as she had intended to contest in the local body election. The said request has been rejected on the ground that orders on the above said application can be passed only on 15.10.2011 afternoon. It is further stated that as the petitioner has only three months of remaining service and due to retirement, on attaining the age of superannuation on 30.11.2011, the application cannot be considered and accordingly, vide order dated 18.08.2011, the Director of Public Health and Preventive Medicine, Chennai, the first respondent herein has returned the application along with the service register forwarded by the Deputy Director, Health Services, Madurai, vide letter No.2609/A4/11, dated 13.07.2011. According to the petitioner, the State Election Commissioner, Tamil Nadu has notified 29.09.2011, as the last date for submission of the nomination form, to contest in the local body election and that the petitioner requires a No Objection Certificate. In the above said circumstances, the petitioner has come forward with the present Writ Petition. 2. Material on record further discloses that the above said order has been communicated to the petitioner, vide proceedings of the https://hcservices.ecourts.gov.in/hcservices/ 2 Deputy Director, Health Services, Madurai, in Na.Ka.No.3745/A4/2011, dated 06.09.2011. Once again, the petitioner seemed to have made a representation dated-Nil, for the very same purpose and that the Deputy Director of Health Services, in his proceedings in Na.Ka.No.2609/A4/11, dated 19.09.2011 has addressed a letter to the Director, Public Health and Preventive Medicine, Chennai, the first respondent herein, forwarding all the proceedings stated supra. 3. Considering the limited scope of the prayer made in the Writ Petition, Mr.S.Chandrasekar, learned Government Advocate was put on notice and heard. Referring to Clause 3 of Rule 56 of the Fundamental Rules, he submitted that a Government servant, who has attained the age of fifty years or who has completed twenty years of qualifying service, may be permitted to retire from service, by giving notice of not less than three months in writing direct to the appointing authority with a copy marked to his immediate superior officer for information, before giving such notice, he may satisfy himself by means of a reference to such authority that he has completed the required number of years of qualifying service. He further submitted that as per Rule 56(3)(b) of the Fundamental Rules, period of service of three months notice shall be reckoned from the date of receipt of notice by the appointing authority. Referring to the impugned order dated 18.08.2011, he submitted that the application dated 13.06.2011 has been received in the Directorate only on 18.07.2011 and that therefore, the request for voluntary retirement can be considered only after the expiry of three months period. In the above said circumstances, he submitted that there is no manifest illegality. 4. Heard the learned counsel for the parties and perused the materials available on record. 5. It is not in dispute that the petitioner, by his letter dated 13.06.2011, has intended to go on voluntary retirement from service and that the same had been forwarded to the Director of Public Health and Preventive Medicine, Chennai, the first respondent herein. The application seemed to have been received by the Directorate only on 18.07.2011. Rule 56(3) of Fundamental Rules states that a Government Servant, who has attained the age of fifty years or who has completed twenty years of qualifying service, may retire from service, by giving notice of not less than three months in writing direct to the appointing authority with a copy marked to his immediate superior officer for information, before giving such notice, he may satisfy himself by means of a reference to such authority that he has completed the required number of years of qualifying service. It is made clear that the period of three months notice shall be reckoned only from the date of receipt of notice by the appointing authority. 6. As per Rule 56(3)(e), a notice of voluntary retirement given by a Government servant shall be accepted by the appointing authority, subject to the following conditions being satisfied namely:- (i) that no disciplinary proceedings are contemplated or pending against the Government servant concerned for the imposition of a major penalty; https://hcservices.ecourts.gov.in/hcservices/ 3 (ii) that no prosecution is contemplated or pending in a Court of Law against the Government servant concerned; (iii) that a report from the Director of Vigilance and Anti- corruption has been obtained to the effect that no enquiry is contemplated or pending against the Government servant concerned; (iv) that no dues which cannot be recovered from his Death -cum- Retirement Gratuity are pending to be recovered from the Government servant concerned; and (v) that there is no contractual obligation to serve the Government during the period in which the Government servant concerned seeks to retire voluntarily. However, the reason assigned by the first respondent in not considering the request for voluntary retirement, on the ground that the same could be considered only after the expiry of three months period, from the date of receipt of notice, is not tenable, in view of Rule 56(3)(f), which states that the appointing authority shall issue orders before the date of expiry of notice, either accepting the voluntary retirement or not. Otherwise, the Government servant shall be deemed to have been retired voluntary from service at the end of the period of notice. Provided that where a Government servant under suspension or against whom disciplinary or criminal action is pending, seeks to retire voluntarily, specific orders of the appointing authority for such voluntary retirement is necessary. The appointing authority may withhold the permission sought for by the Government servant, if any of the conditions specified in Clause (e) are not satisfied. Provided further that the appointing authority may also withhold the permission for voluntary retirement sought for by a Government servant, if the post held by him has been declared as "Scarce Category" by the administrative department concerned in Secretariat and whose continuation in Government service is absolutely essential in public interest. 7. In view of the specific statutory provisions of Rule 56(3) of the Fundamental Rules, the contention of the respondents that the application dated 13.06.2011 could be considered only after the expiry of three months period is not tenable and in view of the above said provisions, this Court is inclined to set aside the order dated 18.08.2011, which is impugned in this Writ Petition. Accordingly, the impugned order of the first respondent dated 18.08.2011 is set aside and consequently, a direction is issued to the first respondent to consider the proposals in Na.Ka.No.2609/A4/2011, dated 19.09.2011 forwarded by the Deputy Director of Health Services, Madurai and pass appropriate orders, as expeditiously as possible, on merits and in accordance with law. While considering the application for voluntary retirement, the Director of Public Health and Preventive Medicine, Chennai is also directed to keep in mind the conditions required to be satisfied, for accepting the request for voluntary retirement. 8. The Writ Petition stands allowed in the above terms. Consequently, the connected miscellaneous petition is closed. No costs. Sd/- Assistant Registrar (CO) / True Copy / Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To 1.The Director, Public Health and Preventive Medicine, Office of the Director Medical Department, Chennai-6. 2.The Deputy Director, Public Health Department, Madurai. +1CC TO MR.C.SUNDARAVADIVEL, ADVOCATE SR : 33600 Sml SR : 28.09.2011 : 4p/4c : IT Order made in W.P.(MD).No.11144 of 2011 Dated:- 28.09.2011 https://hcservices.ecourts.gov.in/hcservices/