STATE OF WEST BENGAL & ORS. versus DR. TONMOY MONDAL
[2019] 5 S.C.R. 1049, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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STATE OF WEST BENGAL & ORS.
v.
DR. TONMOY MONDAL
(Civil Appeal No. 2928 of 2019)
MARCH 12, 2019
[ARUN MISHRA, NAVIN SINHA AND
INDIRA BANERJEE, JJ.]
West Bengal Service Rules, 1971:
Rule 75 – Interpretation of – Voluntary retirement sought –
Declined on the ground that it was not appropriate in the public
interest – Order declining voluntary retirement quashed by State
Administrative Tribunal – In writ petition High Court upheld the
order  whereby prayer for voluntary retirement was declined –
Review petition was allowed restoring order of the Tribunal – On
appeal, held: Merely on entertaining a different view on
interpretation of rule 75, it was not open to Division Bench of High
Court to review previous judgment and order passed by a different
Division Bench of High Court – High Court while deciding the
review has committed a fundamental jurisdictional error – It has
acted as if it was exercising appellate power while exercising review
jurisdiction – Even in the review application no ground was raised
to constitute an error apparent on the face of record – Another
jurisdictional error was that the court while deciding the review
petition also decided the matter on merit instead of hearing the
matter afresh – Rule 75(aa) deals with retirement in public interest
which brings in the concept of compulsory retirement – Rule 75(aaa)
deals with voluntary retirement – Note 3 to Rule 75 (aaa) is not
confined in operation to sub-rule (aaa), it is applicable to
both i.e.
sub-rule (aaa) and sub-rule (aa) of Rule 75 – The High Court had
taken a correct view while dealing with the writ petition – High
Court in review, illegally interfered with the same – Service Law –
Voluntary Retirement – Review.
 State of Uttar Pradesh v. Achal Singh 2018 (10) SCALE
89 – relied on.
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1049
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Case Law Reference
2018 (10) SCALE 89
       relied on
Para 9
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2928
of 2019
From the Judgment and Order dated 20.01.2017 of the High Court
at Calcutta in R.V.W. No. 18 of 2015
Anand Grover, Sr. Adv., Suhaan Mukerji, Ms. Astha Sharma,
Abhishek Manchanda, Amit Verma, Ms. Dimple Nagpal, M/s Plr
Chambers and Co,  Advs. for the Appellants.
S. B. Upadhyay, Sr. Adv., Konark Tyagi, Deepayan Mondal, Rahul
Shyam Bhandari , Advs. for the Respondent.
The following Order of the Court was passed :
O R D E R
1. Leave granted.
2. The question involved in the appeal is the interpretation of Rule
75 of West Bengal Service Rules, 1971 [hereinafter ‘Rules’] framed in
exercise of powers conferred by the proviso to Article 309 of the
Constitution of India.
3. The respondent-Dr. Tonmoy Mondal had joined services initially
on 20.10.1986 as a Medical Officer in West Bengal Health Services on
ad hoc basis. He was confirmed in the said post vide Notification dated
15.11.2002. On 16.11.2011, he sought voluntary retirement.  The prayer
made by the respondent was rejected by the Government vide order
dated 22.02.2013 on the ground that it was not considered appropriate in
the public interest to accept the request for voluntary retirement. Following
is the relevant portion of the order:
“We know that the public interest is the welfare or wellbeing of
general people.  The welfare of the general public
is ensured,
inter alia, through recognization, promotion, and protection of the
same by the Government or its agencies. The Government or its
department cannot adversely affect the rights, health, and finance
of the public at large.  The applicant, i.e. Dr. Tanmoy Mondal is a
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doctor and his service is indispensable in public interest.  At this
stage, the Health & Family Welfare Department is having many
vacancies and it is necessary to retain doctors to provide service
to people.
    Considering all these aspects, I am inclined to hold that it is
not in public interest to retire Dr. Mondal.  Consequently, it appears
to me that the prayer of Dr. Tanmoy Mondal should be rejected.
Moreover, voluntary retirement of a member of Health Services
is not maintainable as per provisions laid down in DCRB Rules.”
4. The respondent questioned the aforesaid order by way of filing
Original Application No.754 of 2013 before the West Bengal
Administrative Tribunal.  The Tribunal vide order dated 18.11.2013 allowed
the application and quashed the order passed by the State government
declining voluntary retirement.  The State of West Bengal filed Writ
Petition being WPST No.208/2014 in the High Court at Calcutta
challenging the same.
5. The Division Bench of the High Court initially vide judgment
and order dated 22.08.2014 opined that according to Note 3 below Rule
75(aaa) of the Rules, every case of retirement under Rule 75 is to be
examined by the appointing authority on the facts of the case concerned.
Permission granted to one Medical Officer to retire under the Rule cannot
necessarily lead to the conclusion that another Medical Officer seeking
to retire under the Rule is also entitled to the permission.  The extent of
public interest
involved in the case is to be examined by the appointing
authority objectively and the opinion formed by the appointing authority
as to the existence of public interest cannot be judicially reviewed unless
it is the case that it was recorded with malice or ex facie without any
basis. It was opined that the application for voluntary retirement under
Rule 75 (aaa) of the Rules has nothing to do with the right not to work.
The question is whether the right to seek voluntary retirement is an
absolute right.  It is not a case of resignation.  While setting aside the
order of the Tribunal dated 18.11.2013, the High Court upheld the order
passed by the State Government declining to accept the prayer for
voluntary retirement.
6. A Special Leave Petition was preferred in this Court against
the decision dated 22.08.2014 rendered by the High Court.  However, it
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was withdrawn on the ground that there were certain errors apparent
on the face of the record of the order passed by the High Court and as
such the petitioner wanted to file a review petition. Permission was granted
to withdraw the Special Leave Petition with liberty to file a review petition.
7. Thereafter, pursuant to the aforesaid order, review petition
R.V.W. No.18/2015 in WPST No.208 of 2014 was filed in the High
Court. The same has been allowed by the impugned judgment and order
dated 20.01.2017 in R.V.W. No.18/2015 and the decision in Writ Petition
No.208/2014 has been reversed.  Same has been questioned by the
State of West Bengal in the appeal.
8. The Division Bench while allowing the review petition has
observed that on a proper interpretation,  Note 3 of Rule 75 could not
have been rationally or logically applied in respect of sub-Rule (aaa) of
Rule 75 of the Rules.  There was an error apparent on the face of the
record in the judgment and order dated 22.08.2014 as such the same
was required to be interfered with. Hence review has been allowed and
the order passed by the Tribunal has been restored.
9. Shri Anand Grover, learned Senior counsel on behalf of the
appellant(s) has submitted that it was not proper for the Division Bench
to review the previous judgment and order as no ground within the
parameters of review jurisdiction was available. Apart from that, the
interpretation put upon Rule 75 (aaa) of
the Rules is not correct and the
case is clearly covered by the decision of this Court in State of Uttar
Pradesh v. Achal Singh - 2018 (10) scale 89.
10. On the other hand, Mr. S.B. Upadhyay, learned Senior counsel
appearing on behalf of the respondent has supported the judgment and
order passed by the High Court and contended that Note 3 was in fact
not inserted vide order dated 23.06.1973 as mentioned in the notification
dated 15.08.1971, there is a wrong reference to the insertion to the Note
3 of Rule 75(aaa) vide notification of 23.06.1973. He submitted that the
concept of public interest is not germane in the case of voluntary
retirement. Note 3 is attracted only in the case of retirement ordered in
the public interest under Rule 75 (aa) of the Rules.  Thus, no case for
inference with the impugned judgment and order of the High Court is
made out.
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
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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.  Rule
75 is extracted herein:
“75 (a) Except as otherwise provided in these rules, a Government
employee other than a member of the Group D service shall retire
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from service compulsorily with effect from the afternoon of the
last day of the month in which he attains the age of fifty-eight
years;
provided that a Government employee other than a member of
the Group D service whose date of birth is the first of a month
shall retire from service with effect from the afternoon of tin; last
day of the preceding month of attaining the age of fifty-eight years;
provide further that the age-limit for retirement as prescribed in
this rule shall not be applicable in cases where higher age limit up
to 60 years for retirement has been fixed under any general or
special orders of Government.
Note-In cases where the Matriculation certificate does not show
the actual date of birth and instead shows the age of the candidate
as on the 1st March of the years in which the examination was
held in terms of years and months only excluding days, Government
may alter the date of birth recorded in the Service Book, to
correspond to the actual date of birth, if the Government employee
concerned is able to produce acceptable documentary evidence
in the form of an extract from Birth Register or Admission Register
of the institution concerned etc.  In support of the actual date of
birth claimed by him, and a decision to retire him shall be taken on
the basis of such altered date of birth.  Where, however, the date
of birth of a Government employee has been recorded as the first
day of a month on the
basis of Matriculation certificate showing
the age as on the 1st March of the year in which the examination
was held in terms of years and months only and where it is not
possible to ascertain the exact date of birth on the basis of any
acceptable documentary evidence like extract from the Birth
Register or Admission Register of the institution concerned etc.,
it shall be presumed that the actual date of birth of the Government
employee was a day other than the first date of the month and he
may be allowed to retire on the last day of the same month instead
of the last…of the previous month,”
75(aa) Notwithstanding anything contained in the rule, the
appointing authority shall, if it is of opinion that it is in the public
interest so to do, have the absolute right to retire any Government
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employee by giving him notice of not less than 3 months in writing
or 3 months’ pay and allowances in lieu of such notice.
(i)  if he is in Group A or Group B (erstwhile gazetted) service or
post and had entered Government service before attaining the
age of 35 years, after he has attained the age of 50 years; and (ii)
in all other cases, after he has attained the age of 55 years.
Note-(i) if on a review of the case either on a representation from
the Government employee retired prematurely or otherwise, it is
decided to reinstate the Government employee in service, the
authority ordering reinstatement may regulate the intervening pe-
riod between the date of premature retirement and the date of
reinstatement by the grant of leave or, by treating it as dies non
depending upon the facts an circumstances of the case;
Provided that the intervening period shall be treated as a period
spent on duty for all purposes including pay and allowances, if it is
specifically held by the authority ordering reinstatement that the
premature retirement was itself not justified in the circumstances
of the case, or if the order of premature retirement is set aside by
the Court of law.
(ii) Where the order of premature retirement is set aside by a
Court of law with specific directions in regard to regulation of the
period between the date of premature retirement and the date of
reinstatement and no further appeal is proposed to be filed, the
aforesaid period shall be
regulated in accordance with the directions
of the court.
75(aaa)Any government employee may, by giving notice of not
less than 3 months in writing to the appointing authority, retire
from Government service after he has attained the age of 50
years, if he is in Group A or Group B (erstwhile gazetted) 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.
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Note 1 - In computing the three months notice period referred to
in sub-rule(aa) and (aaa) the date of service of the notice and the
date of its expiry shall be excluded.
Note 2 - The 3 months’ notice referred to in sub-rule (aa) or sub-
rule (aaa) above, 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.
Note 3 - 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.
16. Rule 75(a) deals with the retirement on attaining the age of
superannuation. The expression “compulsory” retirement has been
wrongly used in the said provision. What is meant by compulsory
retirement probably is that no one to continue in service after attaining
the age of 58 years. The retirement on attaining the age of superannuation
is not a concept of compulsory retirement as understood in the service
jurisprudence. Be that as it may, the State may be well advised to amend
the rule.
17. Rule 75 (aa) deals with retirement in public interest. As a
matter of fact, the concept of compulsory retirement is the one which is
to be found in Rule 75 (aa). It provides that there is an absolute right
with the State Government in the public interest to retire a person by
giving a notice
of not less than 3 months in writing or 3 months’ pay and
allowances in lieu of such notice.
18.  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
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authority to withhold permission to a government employee under
suspension who seeks to retire under this sub-rule.
19. 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.
20. 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.
21. 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.
22. 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
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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
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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.
23. The respondent is directed to report back to the duty within
one month from today.  He will not be entitled to the wages for the
period he has not served and that would also not be counted towards the
period of service for the purpose of retiral benefits.
24. The
impugned order dated 20.01.2017 is set aside and the
judgment and order dated 22.08.2014 is hereby restored.  The appeal is
allowed.  No costs.
Kalpana K. Triapathy
                                 Appeal allowed.
STATE OF WEST BENGAL & ORS. v. DR. TONMOY MONDAL