CWP No.6671 of 2009.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.6671 of 2009(O&M) Date of Decision: 26.04.2010 **** Dr. Bharat Bhushan . . . . Petitioner VS. State of Punjab and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. N.K. Suneja, Advocate for the petitioner Ms. Charu Tuli, Sr. DAG, Punjab ***** SURYA KANT J. (ORAL) (1). This order shall dispose of CWPs No.6671, 8434, 12427 & 19371 of 2009; 1796 & 2913 of 2010 as common questions of law and facts are involved in these cases. The petitioners in these cases are working as Medical Officers (General) in the Health and Family Welfare Department, Government of Punjab and are aggrieved at the action of the respondents, whereby, their requests for voluntary retirement after completion of 20 years of qualifying service, have been turned down. For brevity, the facts are being extracted from CWP No.6671 of 2009. CWP No.6671 of 2009.doc - 2 – (2). In this Civil Writ Petition, the petitioner joined the respondent-Department as Medical Officer on 6th February, 1989. The petitioner due to certain reasons could not continue in service and applied for voluntary retirement giving three months prior notice on 29.12.2008 (Annexure P3) expressing his desire to be voluntarily retired from service w.e.f. 01.04.2009 on expiry of the notice period. However, his request for voluntary retirement did not find favour with the appropriate authority which has turned down the same vide the impugned order dated 13.02.2009 (Annexure P5) on the ground that he does not possess 20 years’ qualifying service for the reason that his initial appointment was on ad hoc basis, which came to be regularized subsequently w.e.f. 05.02.1993 only and that the ‘qualifying service’ shall commence from the date of regular appointment only. (3). Aggrieved, the petitioner has approached this Court. (4). The respondents have filed their counter-affidavit, wherein apart from the plea already taken by them in the impugned order, it is maintained that ‘voluntary retirement’ on completion of 20 years’ qualifying service cannot be claimed as a matter of right unless the request is accepted by the appropriate authority. CWP No.6671 of 2009.doc - 3 – Distinction is also sought to be drawn between the petitioner’s claim and of a Medical Officer who has completed 25 years of qualifying service as the latter can seek voluntary retirement as a matter of right and the Rules. According to the respondents, there is scarcity of Medical Officers and if the petitioner’s request for voluntary retirement is acceded to, it would be prejudicial to the larger public interest. (5). It is also pointed out that the petitioners did their Postgraduate Degree/Diploma Courses at the State’s expenses, therefore, the State Government has decided not to retire them voluntarily till they complete at least 25 years’ of regular service. (6). I have heard learned counsel for the parties and gone through the records also. (7). In order to appreciate the issue involved, it would be apposite to refer to Rule 3 of the Punjab Civil Services (Premature) Rules 1975 (for brevity, ‘the Rules’)which reads as follows:- “3. Premature Retirement. - (1)(a) The appropriate authority shall, if it is of the opinion that it is in public interest to do so, have the absolute right, by giving an employee prior notice in writing, to retire that employee on the date on which he completes twenty-five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice. CWP No.6671 of 2009.doc - 4 – (b) The period of such notice shall not be less than three months: Provided that where at least three months notice is not given or notice for a period less than three months is given, the employee shall be entitled to claim a sum equivalent to the amount of his pay and allowances, at the same rates at which he was drawing them immediately before the date of retirement, for a period of three months, or, as the case may be, for the period by which such notice falls short of three months. (2) Any Government employee may, after giving at least three months previous notice in writing to the appropriate authority retire from service on the date on which he completes twenty-five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice. Provided that no employee under suspension shall retire from service except with the specific approval of the appropriate authority. [(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.] (4) The employee, who has elected to retire under sub-rule (2) or sub-rule (3) and has given the necessary notice to that effect to the appropriate authority, shall be precluded from withdrawing his notice except the specific approval of the appropriate authority. CWP No.6671 of 2009.doc - 5 – Provided that the request for withdrawal shall be made before the intended date of his retirement.” (Emphasis applied) (8). It may be true that the Rules ibid contemplates two types of voluntary retirements, namely, (i) after completion of 25 years of regular service or on attaining the age of 50 years; and (ii) after completion of 20 years’ qualifying service. (9). In the cases failing within the first category, a Government employee after giving three months’ notice period to the appropriate authority, can seek voluntary retirement as a matter of right as no formal acceptance of his request is needed. In the cases of second category, namely, seeking ‘voluntary retirement’ on completion of 20 years of qualifying service, Rule 3(3)(b) does provide that notice of voluntary retirement given under this sub-rule “shall require acceptance by the appropriate authority.” (10). The further question that arises for consideration is as to 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? CWP No.6671 of 2009.doc - 6 – (11). In my considered view, 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. In our constitutional scheme where Rule of Law is supreme, every ‘power’ is preceded by a ‘duty’ to act fairly and in accordance with law. The exercise of power in an unguided manner by itself would render the action arbitrary. The non-acceptance of request for voluntary retirement, if based upon sound, valid and uniform policy, may not warrant interference by this Court while exercising its power of judicial review. However, in the absence of any transparent criteria or a pick and choose policy would invite the court’s intervention. (12). Adverting to the facts on record, the respondents have very recently made recruitments of Medical Officers and several wait-listed candidates have also approached this Court seeking directions for their appointments due to availability of vacant posts. This fact has been duly noticed by the first respondent in its order dated 11.12.2009, while accepting the request for ‘voluntary retirement’ of one Dr. Sukhdev Singh, Medical Officer on the plea that ‘now due to new recruitment of the CWP No.6671 of 2009.doc - 7 – doctors, the matter has been re-considered and the doctor has been given voluntary retirement’. (13). As regards the second plea, namely, that the petitioners had completed their Postgraduate Degree/Diploma Course at the State’s expenses, suffice it to observe that the petitioners have served for the minimum period of service which they were required to do under the service bonds executed by them. It is for the respondents to impose more rigorous condition(s) in future if they want such like doctors to serve the State for a longer period. (14). The third issue, namely, that the petitioner was initially appointed on ad hoc basis and made regular w.e.f. 05.02.1993 only and has not completed 20 years ‘regular service’, is no longer res integra in view of a Division Bench decision of this Court in CWP 12179 of 2009 (Dr. Anil Kumar Saluja vs. State of Punjab and others) holding that :- “It is well settled that adhoc/work charged or any other service followed by regularization has to be treated as qualifying service for the purposes of pension. A Full Bench judgement of this Court in the case of Kesar Chand v. State of Punjab 1988(2) PLR 23 declared Rule 3.17 of the Rules as ultra vires which exclude the period of work charge and adhoc service from the definition of expression ‘qualifying service’. The respondent-State has now added Rule 3.17 (b) which provides that service rendered on the establishment interrupted or continuous has to be counted as qualifying service. Therefore, there is no impediment in holding that the period of adhoc service rendered by the petitioner from 4.1.1988 to 30.11.1993 has to be treated as CWP No.6671 of 2009.doc - 8 – qualifying period for pension. Once it is so, then it has to be given the same meaning for rule 3 of the Rules.” (15). For the reasons afore-stated, it is held that the reasons assigned by the appropriate authority while declining the request of the petitioner(s) for voluntary retirement, in purported exercise of its power under Rule 3(3)(b) of the Rules, cannot sustain either in law or on facts. (16). The impugned order dated 13.02.2009 (Annexure P5) is accordingly set aside and the respondents are directed to accept the request of the petitioner for ‘voluntary retirement’ forthwith as the notice period has already expired and 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 this order. The petitioner shall be entitled to all the consequential/pensionary benefits as per the Rules which shall be released as early as possible and not later than six months thereafter. (17). Ordered accordingly. (18). Dasti . (SURYA KANT) JUDGE 26.04.2010 vishal shonkar