Case: STATE OF WEST BENGAL AND OTHERS Vs. DR. TONMOY MONDAL

Group B (erstwhile gazette) service or post and had entered Government service before attaining the age of 35 years, and in all other cases, after he has attained the age of 55 years, provided that it shall be open to the appointing authority to withhold permission to a government employee under suspension who seeks to retire under this sub-rule. 18. Note 1 to Rule 75 (aaa) provides that in computing the three months notice period referred to in Rule 75 (a) and (aaa) date of service of the notice and date of expiry shall be excluded. 19. Note 2 specifically deals with three months notice referred in Rule (aa) and sub-rule (aaa) that it may be given before the government employee attains the age specified in the said sub-rules provided that the retirement takes place after the Government employee has attained the specified age. 20. However, Note 3 which is relevant is not confined in operation to sub-rule (aaa) of Rule 75. It is clearly provided in Note 3 that the appointing authority should invariably keep on record that in his opinion it is necessary to retire the Government employee in pursuance of the aforesaid rule in public interest. Obviously, the Note 3 is applicable to both Rule 75 (aa) and 75 (aaa) as was rightly opined by the Division Bench while rendering the judgment and order dated 22.08.2014. 21. The question is no more res integra. It has been considered by this Court in Achal Singh (supra), in which the following observations have been made: 33. The concept of liberty not to serve when the public interest requires cannot be attracted as retirement which carries pecuniary benefits can be subject to certain riders. The general public has the right to obtain treatment from super skilled specialists, not second rates. In Jagadish Saran v. Union of India (1980) 2 SCC 768 , the Court observed thus: 44. Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for postgraduate or postdoctoral courses in specialized subjects......To sympathize mawkishly with the weaker sections by selecting substandard candidates is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super skilled specialist, not humdrum second rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is postgraduate or postdoctoral. 34. The concept of public interest can also be invoked by the Government when voluntary retirement sought by an employee, would be against the public interest. The provisions cannot be said to be violative of any of the rights. There is already a paucity of the doctors as observed by the High Court, the system cannot be left without competent senior persons and particularly, the High Court has itself observed that doctors are not being attracted to join services and there is an existing scarcity of the doctors. Poorest of the poor obtain treatment at the Government hospitals. They cannot be put at the peril, even when certain doctors are posted against the administrative posts. It is not that they have been posted against their seniority or to the other cadre. Somebody has to man these administrative posts also, which are absolutely necessary to run the medical services which are part and parcel of the right to life itself. In the instant case, where the right of the public is involved in obtaining treatment, the State Government has taken a decision as per Explanations to decline the prayer for voluntary retirement considering the public interest. It cannot be said that State has committed any illegality or its decision suffers from any vice of arbitrariness. 35. The decision of the Government caters to the needs of human life and carry the objectives of public interest. The respondents are claiming the right to retire under Part III of the Constitution such right cannot be supreme than right to life. It has to be interpreted along with the rights of the State Government in Part IV of the Constitution as it is obligatory upon the State Government to make an endeavour under Article 47 to look after the provisions for health and nutrition. The fundamental duties itself are enshrined under Article 51(A) which require observance. The right under Article 19(1) (g) is subject to the interest of the general public and once service has been joined, the right can only be exercised as per rules and not otherwise. Such conditions of service made in public interest cannot be said to be illegal or arbitrary or taking away the right of liberty. The provisions of the rule in question cannot be said to be against the constitutional provisions. In case of voluntary retirement, gratuity, pensions, and other dues etc. are payable to the employee in accordance with rules and when there is a requirement of the services of an employee, the appointing authority may exercise its right not to accept the prayer for voluntary retirement. In case all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest. In the case of voluntary retirement, there is provision in Rule 56 that a Government servant may be extended benefit of additional period of five years then an actual period of service rendered by him there is the corresponding obligation to serve in dire need. 22. In view of the aforesaid discussion, we are of the considered opinion that in the previous judgment and order passed by the Division Bench on 22.08.2014 had taken a correct view on merits and was illegally interfered with while exceeding the jurisdiction by the subsequent Division Bench while reviewing it and dismissing the Writ Petition being WPST No.208 of 2014 by the impugned judgment and order dated 20.01.2017.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. We are constrained to observe that merely on entertaining a different view on the interpretation of Rule 75, it was not open to the Division Bench to review previous judgment and order passed by a different Division Bench of the High Court on 22.08.2014. A fundamental jurisdictional error has been committed by the Division Bench of the High Court while setting aside the order dated 22.08.2014. It has acted as if it was exercising appellate power while exercising the review jurisdiction. There was no such error apparent on the face of the record in the previous judgment and order dated 22.08.2014 warranting review by the different bench of the High Court. No doubt, there was a change in the composition of the Division Bench. The judgment and order passed by earlier Bench was required to be equally respected and not to be readily interfered with, until and unless there is an apparent error on the face of the record. Merely by entertaining a different view as to the interpretation of a particular provision, a judgment cannot be reviewed.12. The Division Bench which earlier decided the matter had laboured hard to interpret Rule 75 by analyzing it more effectively and rightly than done while reviewing the order. We are of the opinion that the Division Bench ought not to have reviewed the judgment and order at all as no ground was available within the parameters of review jurisdiction. No ground had been raised even in the review application to constitute an error apparent on the face of record much less reflected in the impugned order passed in the review so as to set aside the previous judgment and order.13. Apart from that, yet another jurisdictional error has been committed. Once the Court had found that there was sufficient reason for reviewing the order, only review petition should have been decided, after the recall of the order it ought to have heard the main matter afresh. That has not been done. By the same impugned order, the previous judgment and order have been set aside and the main case has also been disposed of without hearing it again separately. Thus, the proper procedure has not been followed.14. When we come to the merits of the case, from the interpretation of Rule 75, it is apparent that it deals with retirement on attaining the age of superannuation in the public interest, and voluntary retirement.17. When we come to Rule 75 (aaa) of the Rules, it is apparent that the same deals with the voluntary retirement of a government employee. Any Government employee by giving notice of not less than 3 months in writing or 3 months pay and allowances in lieu of such notice, to the appointing authority, may retire from government service after he has attained the age of 50 years, if he is in Group A or Group B (erstwhile gazette) service or post and had entered Government service before attaining the age of 35 years, and in all other cases, after he has attained the age of 55 years, provided that it shall be open to the appointing authority to withhold permission to a government employee under suspension who seeks to retire under this sub-rule.18. Note 1 to Rule 75 (aaa) provides that in computing the three months notice period referred to in Rule 75 (a) and (aaa) date of service of the notice and date of expiry shall be excluded.19. Note 2 specifically deals with three months notice referred in Rule (aa) and sub-rule (aaa) that it may be given before the government employee attains the age specified in the said sub-rules provided that the retirement takes place after the Government employee has attained the specified age.20. However, Note 3 which is relevant is not confined in operation to sub-rule (aaa) of Rule 75. It is clearly provided in Note 3 that the appointing authority should invariably keep on record that in his opinion it is necessary to retire the Government employee in pursuance of the aforesaid rule in public interest. Obviously, the Note 3 is applicable to both Rule 75 (aa) and 75 (aaa) as was rightly opined by the Division Bench while rendering the judgment and order dated 22.08.2014.21. The question is no more res integra. It has been considered by this Court in Achal Singh (supra), in which the following observations have been made:33. The concept of liberty not to serve when the public interest requires cannot be attracted as retirement which carries pecuniary benefits can be subject to certain riders. The general public has the right to obtain treatment from super skilled specialists, not second rates. In Jagadish Saran v. Union of India (1980) 2 SCC 768 , the Court observed thus:44. Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for postgraduate or postdoctoral courses in specialized subjects......To sympathize mawkishly with the weaker sections by selecting substandard candidates is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super skilled specialist, not humdrum second rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is postgraduate or postdoctoral.34. The concept of public interest can also be invoked by the Government when voluntary retirement sought by an employee, would be against the public interest. The provisions cannot be said to be violative of any of the rights. There is already a paucity of the doctors as observed by the High Court, the system cannot be left without competent senior persons and particularly, the High Court has itself observed that doctors are not being attracted to join services and there is an existing scarcity of the doctors. Poorest of the poor obtain treatment at the Government hospitals. They cannot be put at the peril, even when certain doctors are posted against the administrative posts. It is not that they have been posted against their seniority or to the other cadre. Somebody has to man these administrative posts also, which are absolutely necessary to run the medical services which are part and parcel of the right to life itself. In the instant case, where the right of the public is involved in obtaining treatment, the State Government has taken a decision as per Explanations to decline the prayer for voluntary retirement considering the public interest. It cannot be said that State has committed any illegality or its decision suffers from any vice of arbitrariness.35. The decision of the Government caters to the needs of human life and carry the objectives of public interest. The respondents are claiming the right to retire under Part III of the Constitution such right cannot be supreme than right to life. It has to be interpreted along with the rights of the State Government in Part IV of the Constitution as it is obligatory upon the State Government to make an endeavour under Article 47 to look after the provisions for health and nutrition. The fundamental duties itself are enshrined under Article 51(A) which require observance. The right under Article 19(1) (g) is subject to the interest of the general public and once service has been joined, the right can only be exercised as per rules and not otherwise. Such conditions of service made in public interest cannot be said to be illegal or arbitrary or taking away the right of liberty. The provisions of the rule in question cannot be said to be against the constitutional provisions. In case of voluntary retirement, gratuity, pensions, and other dues etc. are payable to the employee in accordance with rules and when there is a requirement of the services of an employee, the appointing authority may exercise its right not to accept the prayer for voluntary retirement. In case all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest. In the case of voluntary retirement, there is provision in Rule 56 that a Government servant may be extended benefit of additional period of five years then an actual period of service rendered by him there is the corresponding obligation to serve in dire need.22. In view of the aforesaid discussion, we are of the considered opinion that in the previous judgment and order passed by the Division Bench on 22.08.2014 had taken a correct view on merits and was illegally interfered with while exceeding the jurisdiction by the subsequent Division Bench while reviewing it and dismissing the Writ Petition being WPST No.208 of 2014 by the impugned judgment and order dated 20.01.2017.