Case: THE STATE OF UTTAR PRADESH Vs. ACHAL SINGH

nt - Dr. Achal Singh was working as Joint Director in Medical, Health and Family Welfare, Lucknow Region, Lucknow filed an application dated 14.12.2016 for voluntary retirement w.e.f. 31.3.2017. RespondentDr. Ajay Kumar Tiwari was holding the post of Joint Director, Medical, Health and Family Welfare, Devi Patan Mandal, Gonda, filed an application on 28.2.2017 seeking voluntary retirement w.e.f. 31.5.2017. Respondent - Dr. Rajendra Kumar Srivastava was working as Senior Consultant, filed an application for voluntary retirement on 15.4.2015 and- Dr. Rajiv Chaudhary was working as Senior Consultant at District Hospital, Raibareli, he sought voluntary retirement by filing an application on 3.12.2016. The applications remained unattended and no order had been communicated, hence writ petitions were filed in the High Court. Thewere members of the Provincial Medical Services.5. The High Court in the impugned judgment and order has observed that it is the responsibility of the authorities to monitor the health system in the State and they have to sincerely examine the issues as to how the working of the Government hospitals can be improved for the betterment of the general public and find out why doctors are opting for voluntary retirement every day. The High Court also observed that the doctors are not interested in joining the Government service when fresh recruitments take place. The High Court has also noted that posts of Medical Officers are not being filled up on account of non-availability of candidates. The High Court has further noted that those who have entered into Government service are continuously opting for voluntary retirement from service causing serious scarcity of doctors in Government hospitals and Primary Health Centres.6. The High Court in the impugned judgment has also referred to the report of the MCI and the existing proportion of one doctor per 2000 population. In fact, the number of doctors is much smaller than the number given in the MCI report. The High Court also observed that the doctors are being posted, in spite of scarcity, on the administrative posts that causes wastage of specialised talent. The High Court has also observed that the authorities must provide adequate infrastructure, working equipment, and a proper working environment. The hospitals should be made excellent centres of health care. It should be the object of the State Government to provide doctors with good opportunities so as to retain them in services. At the same time, the High Court has also observed that in order to enhance the better medical facilities to the poor and needy people, it would be appropriate to maintain a balance between the senior and junior doctors in each Primary Health Centres in rural and urban areas. There is a need to provide continuing medical education to doctors and to hold conferences and seminars to exchange the latest views/opinions/knowledge etc. and their performance in such events should also be considered for promotion etc. At the same time, the High Court has allowed the writ petitions and treated the doctors to have retired voluntarily on the dates specified. Aggrieved thereby, the State has come up in these appeals.

Reasoning:
11. In our opinion, whether voluntary retirement is automatic or an order is required to be passed would depend upon the phraseology used in a particularunder which retirement is to be ordered or voluntary retirement is sought. The factual position of each and every case has to be seen along with applicablewhile applying a dictum of the Court interpreting any otherit should be Pari Materia. Rule 56(2) deals with the satisfaction of the Government to require a Government servant to retire in the public interest. For the purpose, the Government may consider any material relating to Government servant and may requisition any report from the Vigilance Establishment.12. Thehave relied on dictum in Dinesh Chandra SangmaState of Assam, (1977) 4 SCC 441 ,a three-Judge Bench of this Court observed as under:7. Before we proceed further we may read F.56 as amended:The date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years. He may be retained in service after this age with sanction of the State Government on public grounds which must be recorded in writing and proposals for the retention of a Government servant in service after this age should not be made except in very special circumstances.(b) Notwithstanding anything contained in thesethe appropriate authority may, if he is of the opinion that it is in the public interest to do so, retire Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice, after he has attained fifty years of age or has completed 25 years of service, whichever is earlier.(c) Any Government servant may, by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier.It is clear from the above that under F.56(b) the Government may retire a Government servant in the public interest by giving him three months notice in writing or three months pay and allowances in lieu thereof after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier.8. As is well-known Government servants hold office during the pleasure of the President or the Governor, as the case may be,Article 310 of the Constitution. However, the pleasure doctrineArticle 310 is limited by Article 311(2). It is clear that the services of a permanent Government servant cannot be terminated except in accordance with ther Article 309 subject to Article 311(2) of the Constitution and the Fundamental Rights. It is also well-settled that even a temporary Government servant or a probationer cannot be dismissed or removed or reduced in rank except in accordance with Article 311(2). The above doctrine of pleasure is invoked by the Government in the public interest after a Government servant attains the age of 50 years or has completed 25 years of service. This is constitutionally permissible as compulsory termination of service under F.56 (b) does not amount to removal or dismissal by way of punishment. While the Government reserves its right to compulsorily retire a Government servant, even against his wish, there is a corresponding right of the Government servant under F.56(c) to voluntarily retire from service by giving the Government three months notice in writing. There is no question of acceptance of the request for voluntary retirement by the Government when the Government servant exercises his right under F.56(c). Mr. Niren De is therefore right in conceding this position.56 is one of the statutorywhich binds the Government as well as the Government servant. The condition of service which is envisaged in Rule 56(c) giving an option in absolute terms to a Government servant to voluntarily retire with three months previous notice, after he reaches 50 years of age or has completed 25 years of service, cannot therefore be equated with a contract of employment as envisaged in Explanation 2 to Rule 119.14. The field occupied by F.56 is left untrammelled by Explanation 2 to Rule 119. The words "his contract of employment" in Explanation 2 are clinching on the point.*** *** ***17. The High Court committed an error on law in holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the56(c). Since the conditions of F.56(c) are fulfilled in the instant case, themust be held to have lawfully retired as notified by him with effect from August 2, 1976.13. It was submitted that despite the absence of any identical language, theinvolved in Dinesh Chandra Sangma (supra) is comparable with Uttar Pradesh Fundamental Rules and therefore, the judgment is binding. The submission based upon the same cannot be accepted and Rule 56(b)(c) came up for consideration was somewhat different and there was no such Explanation to Rule 56.14. In Dinesh Chandra Sangma (supra) he was the District and Sessions Judge at Dibrugarh in the State of Assam. On account of domestic troubles, he did not want to continue after attainment of the age of 50 years. He served a noticeRule 56(c) as amended by the Governor of AssamArticle 309 of the Constitution by notification dated 22.7.1975. The formal notice was served upon by him. The Government allowed him to retire from the State Government Service and then there were certain developments in the Government and Government sought to retrace its steps and passed an order on 28.7.1976, countermanding its earlier order allowing him to retire from service. The High Court dismissed the writ application filed by him. The Fundamental Rule as applicable in the State of Assam came up for consideration. In our opinion, it was quite different. It is provided in the Fundamental Rule 56(b) as applicable in the State of Assam that public interest was germane when a Government servant retires. Under Rule 56(c), a Government servant may retire by giving notice of not less than three months. Hence it was observed that there was no question of acceptance of the request for voluntary retirement by the Government when the Government servant exercises his rightRule 56(c). Not only thewas different it was passed on the concession also, however, the Explanation given to Rule 56 in the State of Uttar Pradesh makes it completely different and the provisions inis also quite different. Theas applicable in Assam for the purpose of retirement by the Government is contained inwhich require retirement in public interest whereas no such rider exist inwhen employee seek voluntary retirement, whereasin the State of Uttar Pradesh both provisions are conjointly read not only the language is different and the explanation makes out the whole difference.15. The Explanation attached to Rule 56 as applicable in the State of Uttar Pradesh makes it clear that when a decision is taken by the authority under(c) of Rule 56, the right of an employee to retire cannot be said to be absolute as in the case of resignation, voluntary retirement is with retiral benefits whereas it may not necessarily follow in case of resignation. The decision under thein U.P. is to be based upon considering the public interest, whether it is a case of retirement by the Government or a case of a Government servant seeking voluntary retirement. The decision rendered in Dinesh Chandra Sangma (supra) is distinguishable and was based on the differently couched rule. The Explanation added makes the provisions different in the State of Uttar Pradesh. The decision in the case of Dinesh Chandra Sangma (supra) cannot be said to be operative being quite distinguishable.Rule 5.32(b)(2) of Punjab Rules clearly provide that where the appointing authority does not refuse to grant the permission to retire before the expiry of the period in(1), the retirement shall become effective from the date of the expiry of the said date. There is no such provision of notice becoming effective from the date of the expiry of the period in the Fundamental Rules as applicable to the State of Uttar Pradesh. In the context of the proviso, the notice becomes effective from the date of expiry of the period, in that context this Court has made observations in the aforesaid dictum that Rule 2.2 does not obstruct the voluntary retirement to come into force automatically on the expiry of three months.20. In the State of Haryana (supra), this Court also observed that someare couched in language, which results in an automatic retirement of the employee upon the expiry of the period specified in thenotice. On the other hand, certainin some other departments are couched in the language which makes it clear that even upon expiry of the period specified in the notice, the retirement is not automatic and an express order granting permission is required and has to be communicated. The relationship of master and servant in the latter type ofcontinues after the period specified in the notice till such acceptance is communicated and the refusal of permission could also be communicated after three months and the employee continues to be in service. It is the aforesaid later observations made by this Court, which are squarely applicable to thein question as applicable in the State of Uttar Pradesh.In our considered opinion,Rule 56 as applicable in the State of Uttar Pradesh, notice of voluntary retirement does not come into effect automatically on the expiry of the three months period. Under thein question, the appointing authority has to accept the notice for voluntary retirement or it can be refused on permissible grounds.26. In our opinion, the Rule 56(c) does not fall in the category where there is an absolute right on the employee to seek voluntary retirement. In view of the aforesaid dictum and what is held by this Court, we find that the prayer made to make a reference to a larger Bench, in case this Court does not follow the earlier decision is entirely devoid of merit as on the basis of what has been held by this Court in the earlier decisions, we have arrived at the conclusion. This Court has authoritatively laid down the law umpteen number ofthis purpose, threefold submission has been made. Firstly, that the principle of liberty under the Constitution and specifically Part III of the Constitution requires that any restriction on freedom and liberty must have the sanction of the law and that law must be just, fair and reasonable. Presently, there is no law as enactedArticle 309 of the Constitution. Secondly, the right of Government employee and that of the Government are delineated in terms of Fundamental Rules governing State Government employees. Thus, if any Fundamental Rules do not restrict the general liberty of an employee or do not empower the employer to act in a certain way, an action otherwise would be impermissible. For this purpose, reliance has been placed on Moti Ram DekaG.M., North East Frontier Railway, (1964) 5 SCR 683. It was also submitted that public interest restriction that applies to the State in the case of compulsory retirement, applies on account of Article 311. The Court observed:27. In this connection, it is necessary to emphasise that the rule-making authority contemplated by309 cannot be validly exercised so as to curtail or affect the rights guaranteed to public servants311(1) is intended to afford a sense of security to public servants who are substantively appointed to a permanent post and one of the principal benefits which they are entitled to expect is the benefit of pension after rendering public service for the period prescribed by the Rules. It would, we think, not be legitimate to contend that the right to earn a pension to which a servant substantively appointed to a permanent post is entitled can be curtailed by Rules framed09 so as to make the said right either ineffective or illusory. Once the scope of311(1) and (2) is duly determined, it must be held that no Rule framed09 can trespass on the rights guaranteed by311. This position is of basic importance and must be borne in mind in dealing with the controversy in the present appeals.30. The reliance placed on Moti Ram Deka (supra) is of no avail as it has no application to the instant case as no right conferred by Article 311 of the Constitution can be said to have been taken away and servicedehors of it can provide for the concept of public interest.31. There is no doubt about it that Rule 56(d) provides that where a disciplinary enquiry is pending or contemplated and in the case of contemplated disciplinary enquiry, the Government servant shall be informed before the expiry of notice that it has not been accepted. The proviso to Rule 56(d) has no application where a disciplinary enquiry is not contemplated or pending. When the proviso itself is not applicable, in no case it will dilute the provisions of Explanation with respect to exigencies mentioned in(c) of Rule 56.32. The submission made upon principle of liberty and its curtailment, the law must be just, fair and reasonable can also not be accepted as the Fundamental Rules are statutoryand have been made by the Governorn 241(2)(b) of the Government of Indiaand provisions ofin question cannot be said to be unfair, unreasonable and oppressive.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 SaranUnion of India, (1980) 2 SCC 768 , the Court observed thus:Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for post-graduate or post-doctoral courses in specialisedTo sympathise mawkishly with the weakerby selecting sub-standard 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 specialists, 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 post-graduate or post-doctoral.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 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 are 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 cater to the needs of the human life and carry the objectives of public interest. Theare 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 endeavourArticle 47 to look after the provisions for health and nutrition. The fundamental duties itself are enshrinedArticle 51(A) which require observance. The rightArticle 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 perand 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 thein 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 withand 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 a provision in Rule 56 that a Government servant may be extended benefit of an additional period of five years then an actual period of service rendered by him there is the corresponding obligation to serve in dire need.It was urged that in the State of Tamil Nadu, Government has amended thenot to retire Government doctors, if there is any scarcity of doctors it is open to the Government of Uttar Pradesh to amend its rules.In India, the Government sponsored Medical Services to cater to the needs of poorest of the poor and have-nots otherwise there is the commercialisation of the charitable medical profession. In other States too, it is seen sometime that when a doctor is transferred from one place to another, the doctor forwards application resigning from the post or seeks voluntary retirement as he does not want to move out and leave his lucrative private practice and joins the duty only when he obtains posting back to the place of his choice. In such a scenario people cannot be deprived of the services of good doctors. In view of the scarcity of the doctors and the unfortunate privatisation and commercialisation of the noble medical profession, for maintaining the efficiency of the State Medical Services, the decision taken by the Government is permissible as perand cannot be interfered with. Unfortunately, the High Court has given the aforesaid observations pointing out the shortage of specialised doctors and at the same time has ultimately decided against the State Government on wrong interpretation without considering the Explanation attached to Rule 56 applicable in the State of Uttar Pradesh. The preface given by the High Court is just opposite to its conclusion. The High Court ought to have rejected and not to allow the prayer of voluntary retirement made by the doctors.It was urged that some of the doctors suffered from neck pain etc. as such prayer ought to have been accepted but they have not given any such serious ailments which may make their functioning in the hospital difficult in any mannerwhatsoever. It was the pretext that was used by them to seek voluntary retirement. It is for the Government to consider the efficacy. Doctors too have right under the Rights of Persons with Disabilities Act, 2016, they can continue in services unfettered by such ailments.38. Under Article 47 it is the duty of the State to improve the public health, which is a primary duty under the Directive Principles of the State Policy and the statutory expression which may be enforced. When we consider Article 51A containing Fundamental Duties, it is a duty of every citizenArticle 51A(g) to have compassion for living creatures and to have humanism is also contemplatedArticle 51A(h) and to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavours and achievement. It cannot be done by depriving poorest of the poor essential medical services and to leave them at the mercy of doctors. There cannot be an exodus from the Government Medical Services at large, which is being projected in the instant case, definitely this cannot be permitted to happen within four corners of law as it has to be living organism and has to live up to the essence and spirit of constitution and cannot ignore and overlook needs of poorest strata of the society.39. It was urged that the State Government is discriminating between the doctors in the Provincial Medical Services with the doctors working in the State-owned Hospitals and Medical Colleges. In the Medical Colleges etc. doctors are being permitted to retire. Instances of 7 doctors have been given, who were permitted to retire in 2016, 2017 and 2018. Doctors of Medical Colleges are on a different footing than that of Provincial Medical Services. Even otherwise in view of the scarcity of the doctors, no ground of equality can be claimed and the doctors of different services form different class, apart from that there is no concept of negative equality that too against the public interest. In case, such a plea is allowed, none may be left to serve public at large.40. There are several decisions of the High Court, namely, Dr. Anil DewanState of Punjab, ILR 1 Punjab  & Haryana 46; State of PunjabDr. Harbir Singh Dhillon, 2010 SCC Online6159 and Dr. Kalpana SinghState of Rajasthan,SCC Online Rajwere cited to show that the decision in Dinesh Chandra Sangma (supra) had been followed. We have considered the aforesaid decisions and we find that it would depend upon the scheme of the Rules. Each and every judgment has to be considered in the light of the provisions which came up for consideration and question it has decided, language employed in the rules, and it cannot be said to be of general application as already observed by this Court in State of Haryana (supra).It was also contended that the State of Uttar Pradesh may amendrules, in our opinion there is no such necessity in view of the Explanation the State has already amended itsso as to enable it to pass an order with respect to retirement whether it is at the instance of the Government or at the instance of the employee for both the public interest is germane.42.