The State Of Uttar Pradesh vs Sudarshana Chatterjee

3. Briefly stated facts of the case are that the respondent was appointed to the post of Lecturer (Anesthesia) vide appointment order dated 25.03.1982 and she joined at Motilal Nehru Medical College, Allahabad. While working on the post of Lecturer (Anesthesia) at Motilal Nehru Medical College, Allahabad, the respondent on 20.09.2003 sought a no-objection certificate (NOC) from the appellants in order to apply for the post of Associate Professor (Anesthesia) at Chhattisgarh Institute of Medical Sciences (CIMS), Bilaspur. Pursuant to her applying to CIMS, the respondent received an appointment letter dated 22.04.2004 from CIMS. Upon getting appointed at CIMS, the respondent sent a leave application dated 30.04.2004 addressed to the Secretary, Medical Education Department seeking sanction of leave for two years without pay for 2 joining on the post of Reader in the Department of Anesthesia at CIMS. Though her leave application was pending consideration, the respondent joined as Lecturer in the Anesthesia Department, CIMS on 15.06.2004. The respondent made another application for grant of one month earned leave on 23.07.2004 by citing the reason “personal work”. The said application was considered and leave was sanctioned vide order dated 07.08.2004 by granting the respondent earned leave from 23.07.2004 to 22.08.2004. The respondent remained in the service of the appellants till 22.08.2004; thereafter she has not resumed duty with the appellants. It is stated that the respondent was drawing salary from two State Governments i.e. State of UP and also from CIMS-State of Chhattisgarh.

4. The respondent again sent a leave application on 01.02.2005 seeking grant of leave preparatory to retirement from 23.07.2004 to the date of retirement i.e. 30.09.2006 (26 months 7 days). The respondent also sought for permission to work as Associate Professor at CIMS during the leave period and also sought for grant of allowance in this behalf. On 02.01.2006, the respondent sent an application seeking voluntary retirement citing personal reasons. 3 According to the respondent, none of her applications were replied to by the appellants.

5. After retiring from CIMS, the respondent sent a letter to the Secretary, Department of Medical Education, Government of UP on 02.11.2012 seeking payment of gratuity, pension and leave encashment due on retirement (i.e. on 30.09.2006). In this letter, it was submitted by the respondent that she had applied for the post of Reader at CIMS through the proper channel and had also applied for NOC from the Government/appellant. According to the respondent, she repeatedly applied for NOC. As there was no response, the respondent had no option but to leave the UP Medical Services and join the services at CIMS in June, 2004.

6. The appellants rejected the request of the respondent vide reply dated 01.04.2015 observing that the respondent accepted the post at CIMS without obtaining approval/NOC from the competent authority and without getting her leave sanctioned. In light of her working elsewhere, without leave having been granted and there being no provision with regard to ex-post facto grant of leave and approval for working elsewhere, the request of the respondent was found to be not acceptable.

8. When the said writ petition was pending, vide order dated 16.02.2016, the appellants rejected the application of the respondent seeking voluntary retirement and payment of retiral benefits. In the said order, the appellants observed that the respondent without approval from the State Government, left the services in the State of UP and joined another service in State of Chhattisgarh – CIMS. The appellants held that after joining another service, the respondent no longer remains in the service of the State of UP and as per the rules, the respondent is not entitled to get the retiral benefits on attaining the age of superannuation.

9. The writ petition filed by the respondent in Writ A. No.65084 of 2015 was allowed by the High Court vide impugned judgment dated 24.08.2018. The High Court observed that Rule 73 of the Fundamental Rules of the Financial Handbook has no application to the facts of the present case. The High Court opined that it is not a case where the respondent had remained absent without leave or 5 had overstayed her leave and the respondent throughout submitted her leave applications requesting permission for grant of leave to join CIMS and when no action was taken, the respondent applied for leave without pay and she actually sought voluntary retirement and that was also never considered by the appellants. Pointing out that the respondent had been submitting her leave applications from 2004 onwards, the High Court concluded that the services of the respondent in Motilal Nehru Medical College could not have been ignored for the purpose of pension/notional pension and on those findings, the High Court quashed the order dated 01.04.2015. The High Court remitted the matter to the Principal Secretary, Medical Education and Training Department, Government of Uttar Pradesh to examine the case of the respondent again and pass fresh orders in accordance with law. Though the High Court has directed the State to examine the case of the respondent in accordance with law, the High Court directed that the examination of the case of the respondent should be in the light of the observations made by the High Court in the impugned order dated 24.08.2018.

20. In the result, the impugned order dated 24.08.2018 passed by the High Court of Allahabad in Writ-A No.65084 of 2015 is set aside and the appeal arising out of the SLP(C) No.10087 of 2019 is allowed. The impugned order dated 15.03.2019 passed by the High Court in Writ-A No.3884 of 2019 directing the presence of Principal Secretary (Medical Education and Training Department), Government of U.P. is set aside and the appeal arising out of SLP(C) No.10542 of 2019 is allowed. The High Court shall take up Writ-A No.3884 of 2019 and afford sufficient opportunities to both 15 the parties and proceed with the matter in accordance with law without being influenced by any of the findings recorded by the High Court in Writ-A No.65084 of 2015. Parties shall bear their respective costs.

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