STATE OF UTTAR PRADESH & ORS. versus ACHAL SINGH on 21 August 2018

[2018] 9 S.C.R. 912

SUPREME COURT REPORTS

[2018] 9 S.C.R.

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STATE OF UTTAR PRADESH & ORS.

v.

ACHAL SINGH

(Civil Appeal No. 8421 of 2018)

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AUGUST 21, 2018

[ARUN MISHRA AND S. ABDUL NAZEER, JJ.]

Public Health Administration: Respondents-doctors membersof Provincial Medical service filed applications for voluntaryretirement – Since no order was communicated to them, respondentsCfiled writ petition seeking voluntary retirement – High Court allowedthe writ petitions – Aggrieved State Government filed instant appeal –Held: Under r.56 as applicable in the State of Uttar Pradesh, noticeof voluntary retirement does not come into effect automatically onthe expiry of the three months period – Under the said rule, theDappointing authority has to accept the notice for voluntary retirementor it can be refused on permissible grounds – r.56(c) does not fallin the category where there is an absolute right on the employee toseek voluntary retirement – The respondents claimed right to retireunder Part III of the Constitution – Such right cannot be supremethan right to life – It has to be interpreted along with the rights ofEthe State Government in Part IV of the Constitution – Where right ofpublic is involved in obtaining treatment, the State Government candecline the prayer for voluntary retirement considering the publicinterest – In case all the doctors are permitted to retire, in thatsituation, there would be a chaos and no doctor would be left in theFGovernment hospitals, which would be against the concept of thewelfare state and injurious to public interest – It is obligatory uponthe State Government to make an endeavour under Art.47 to lookafter the provisions for health and nutrition – Therefore, the decisionof State Government in declining the prayer for voluntary retirementconsidering the public interest did not suffer from any vice ofGarbitrariness – When services are required, denial of voluntaryretirement is permissible under the Rules applicable in the State ofUttar Pradesh – Health laws – Service Law – Voluntary retirement –Uttar Pradesh Fundamental Rules – r.56(c) – Constitution of India– Art.47.

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Uttar Pradesh Fundamental Rules: r.56 and its Explanation –Explanation attached to r.56 makes it clear that the decision of theappointing authority under clause (c) of r.56 to retire a Governmentservant shall be taken if it appears to be in public interest – Theexplanation is applicable to both the exigencies viz., whenGovernment retires an employee or when an employee seeksvoluntary retirement, not only when Government desires to retire anemployee in public interest – The public interest is the primeconsideration on which authority has to decide such a prayer asper the rules applicable in the State of Uttar Pradesh – ServiceLaw – Voluntary retirement.

Constitution of India: Principle of liberty and its curtailment –Respondents-doctors members of Provincial Medical service seekingvoluntary retirement – The submission made upon principle of libertyand its curtailment, the law must be just, fair and reasonable cannotbe accepted as the Fundamental Rules are statutory rules and havebeen made by the Governor under s.241(2)(b) of the Governmentof India Act, 1935 and provisions of Fundamental Rules cannot besaid to be unfair, unreasonable and oppressive – The concept ofliberty not to serve cannot be attracted when the public interestdemands as retirement can be subject to certain riders – The rightunder Art. 19(1)(g) is also subject to the interest of the generalpublic and once service has been joined, the right can only beexercised as per rules and not otherwise – Such conditions of servicemade in public interest cannot be said to be illegal or arbitrary ortaking away the right of liberty – In case of voluntary retirement,gratuity, pensions, and other dues etc. are payable to the employeein accordance with rules and when there is a requirement of theservices of an employee, the appointing authority may exercise itsright not to accept the prayer for voluntary retirement – ServiceLaw – Voluntary retirement – Uttar Pradesh Fundamental Rules –r.56(c).

Constitution of India: Art.14 – Equality – Plea ofdiscrimination – Respondents-doctors members of ProvincialMedical service denied voluntary retirement – Plea that the StateGovernment is discriminating between the doctors in the ProvincialMedical Services with the doctors working in the State-ownedHospitals and Medical Colleges – Held: Not correct – Doctors of A

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AMedical Colleges are on a different footing than that of ProvincialMedical Services – Even otherwise in view of the scarcity of thedoctors, no ground of equality can be claimed and the doctors ofdifferent services form different class, apart from that there is noconcept of negative equality that too against the public interest – Incase, such a plea is allowed, none may be left to serve public atBlarge – Public Health Administration.

Allowing the appeals, the Court

HELD: 1. The explanation attached to Rule 56 makes itclear that the decision of the appointing authority under clauseC(c) of Rule 56 to retire a Government servant shall be taken if itappears to be in public interest. The explanation is applicable toboth the exigencies viz., when Government retires an employeeor when an employee seeks voluntary retirement, not only whenGovernment desires to retire an employee in public interest.[Para 10] [925-F]D

State of Bombay v. United Motors, AIR 1953 SC 252 :1953 SCR 1069; Bengal Immunity v. State of Bihar AIR1955 SC 661 : 1955 SCR 603; State of Haryana v.S.K. Singhal (1999) 4 SCC 293 : [1999] 2 SCR 714 –relied on.EDinesh Chandra Sangma v. State of Assam (1977) 4SCC 441 : [1978] 1 SCR 607 – distinguished B.J. Shelat v. State of Gujarat (1978) 2 SCC 202 : [1978]3 SCR 553 – held inapplicable FHimachal Pradesh Horticultural Produce Marketing &Processing Corporation Ltd. v. Suman Behari Sharma(1996) 4 SCC 584 : [1996] 3 SCR 1069; PadubidriDamodar Shenoy v. Indian Airlines Ltd. & Anr. (2009)10 SCC 514: [2009] 14 SCR 356; C.V. Francis v. Unionof India & Ors. (2013) 14 SCC 486: [2013] 8 SCR 53;GTek Chand v. Dile Ram (2001) 3 SCC 290 : [2001] 1SCR 527 – referred to.

2.1 Under Rule 56 as applicable in the State of UttarPradesh, notice of voluntary retirement does not come into effectautomatically on the expiry of the three months period. UnderH

the rule in question, the appointing authority has to accept thenotice for voluntary retirement or it can be refused on permissiblegrounds. Rule 56(c) does not fall in the category where there isan absolute right on the employee to seek voluntary retirement.No doubt under Rule 56(c) there is no requirement for anemployee to give any reason, however, while considering theprayer, the appointing authority has to keep in mind the publicinterest as provided in the Explanation attached to F.R. 56. [Paras25, 26, 28] [942-H; 943-A-B, E]

Mahant Dhanmir v. Madan Mohan, (1987) Supp SCC528 : 1988 SCR 679 – relied on Moti Ram Deka v. G.M., North East Frontier Railway(1964) 5 SCR 683 – held inapplicable 2.2 There is no doubt about it that Rule 56(d) providesthat where a disciplinary enquiry is pending or contemplated andin the case of contemplated disciplinary enquiry, the Governmentservant shall be informed before the expiry of notice that it hasnot been accepted. The proviso to Rule 56(d) has no applicationwhere a disciplinary enquiry is not contemplated or pending.When the proviso itself is not applicable, in no case it will dilutethe provisions of Explanation with respect to exigenciesmentioned in clause (c) of Rule 56. [Para 31] [944-F-G]

3. The concept of liberty not to serve when the publicinterest requires cannot be attracted as retirement which carriespecuniary benefits can be subject to certain riders. The generalpublic has the right to obtain treatment from super skilledspecialists, not second rates. [Para 33] [945-A]

Jagadish Saran v. Union of India, (1980) 2 SCC 768:[1980] 2 SCR 831 – relied on 4.1 The concept of public interest can also be invoked bythe Government when voluntary retirement sought by anemployee, would be against the public interest. The provisionscannot be said to be violative of any of the rights. There is alreadypaucity of the doctors as observed by the High Court, the systemcannot be left without competent senior persons and particularly,the High Court has itself observed that doctors are not beingattracted to join services and there is an existing scarcity of the AB

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Adoctors. Poorest of the poor obtain treatment at the Governmenthospitals. They cannot be put at the peril, even when certaindoctors are posted against the administrative posts. It is notthat they have been posted against their seniority or to the othercadre. Somebody has to man these administrative posts also,which are absolutely necessary to run the medical services whichBare 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 Explanationsto decline the prayer for voluntary retirement considering thepublic interest. It cannot be said that State has committed anyCillegality or its decision suffers from any vice of arbitrariness.[Para 34] [945-D-G]

4.2 The provisions of the rule in question cannot be saidto be against the Constitutional provisions. In case of voluntaryretirement, gratuity, pensions, and other dues etc. are payable toDthe employee in accordance with rules and when there is arequirement of the services of an employee, the appointingauthority may exercise its right not to accept the prayer forvoluntary retirement. In case all the doctors are permitted toretire, in that situation, there would be a chaos and no doctorwould be left in the Government hospitals, which would be againstEthe concept of the welfare state and injurious to public interest.In the case of voluntary retirement, there is a provision in Rule56 that a Government servant may be extended benefit of anadditional period of five years then an actual period of servicerendered by him there is the corresponding obligation to serveFin dire need. [Para 35] [946-C-E]

5. In view of the scarcity of the doctors and the unfortunateprivatisation and commercialisation of the noble medicalprofession, for maintaining the efficiency of the State MedicalServices, the decision taken by the Government is permissibleGas per rules and cannot be interfered with. Unfortunately, theHigh Court has given the aforesaid observations pointing outthe shortage of specialised doctors and at the same time hasultimately decided against the State Government on wronginterpretation without considering the Explanation attached toRule 56 applicable in the State of Uttar Pradesh. The High CourtH

ought to have rejected and not to allow the prayer of voluntaryretirement made by the doctors. [Para 36] [946-G-H; 947-A-B]

6. Under Article 47, it is the duty of the State to improvethe public health, which is a primary duty under the DirectivePrinciples of the State Policy and the statutory expression whichmay be enforced. It is a duty of every citizen under Article 51A(g)to have compassion for living creatures. To have humanism isalso contemplated under Article 51A(h) and to strive towardsexcellence in all spheres of individual and collective activity sothat the nation constantly rises to higher levels of endeavoursand achievement. It cannot be done by depriving poorest of thepoor essential medical services and to leave them at the mercyof doctors. There cannot be an exodus from the GovernmentMedical Services at large, which is being projected in the instantcase, definitely this cannot be permitted to happen within fourcorners of law as it has to be living organism and has to live up tothe essence and spirit of constitution and cannot ignore andoverlook needs of poorest strata of the society. [Para 38] [947-D-F]

7. Plea that the State Government is discriminating betweenthe doctors in the Provincial Medical Services with the doctorsworking in the State-owned Hospitals and Medical Collegescannot be accepted. Doctors of Medical Colleges are on adifferent footing than that of Provincial Medical Services. Evenotherwise in view of the scarcity of the doctors, no ground ofequality can be claimed and the doctors of different services formdifferent class, apart from that there is no concept of negativeequality that too against the public interest. In case, such a pleais allowed, none may be left to serve public at large. Thus, exodusof doctors cannot be permitted to weaken the services when thepublic interest requires to serve for the sake of efficient medicalprofession and fulfil Directive Principles of State Policy once theyfound statutory expression in the rules cannot be made mockery.[Paras 39, 42] [947-G-H; 948-A, F-G]

Dr. Anil Dewan v. State of Punjab, ILR 1 Punjab & Haryana46; State of Punjab v. Dr. Harbir Singh Dhillon, 2010 SCCOnline P&H 6159; Dr. Kalpana Singh v. State of Rajasthan,(2014) SCC Online Raj 6253 – referred to.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8421of 2018

From the Judgment and Order dated 29.11.2017 of the High Courtof Judicature at Allahabad, Lucknow Bench, Lucknow in Writ PetitionFNo. 14939 (S/B) of 2017

WITH

C.A. Nos. 8422, 8423, 8424 of 2018

P. N. Mishra, Amrendra Sharan, Rakesh Dwivedi, R. B. Singhal,Sr. Advs., Ankur Prakash, K. Luikang Michael, Ashok Pande, R. K.GSainy, Rajeev Kumar for Satyajeet Kumar, Gaurav Dhingra, GauravMehrotra, Talha Abdul Rahman, Kushagra Pandey, Sidharth Iyer,Amrendra Kumar Mehta, Raghvendra Saini, Sanjay Mani Tripathi forMs. Anu Gupta, Hiral Lal, Surendra Kumar, Aditya B. Singhal, AmitKumar Upadyay for Aftab Ali Khan, Advs. with them for the appearingHparties.

The Judgment of the Court was delivered by ARUN MISHRA, J. 1. Leave granted.

The Judgment of the Court was delivered by ARUN MISHRA, J. 1. Leave granted.

2. The State of Uttar Pradesh in the appeals is aggrieved bycommon judgment and order dated 29.11.2017 passed by the DivisionBench of the High Court of Allahabad, allowing the writ petitions filedby the respondents herein seeking voluntary retirement from theGovernment services. Directions were issued to treat the respondentsto have retired from Government services with effect from 30.11.2017and 31.12.2017.

3. The main question for consideration before us is as to whetherunder Rule 56 of the Uttar Pradesh Fundamental Rules (hereinafterreferred to as the “Fundamental Rules”) as amended, an employee hasunfettered right to seek voluntary retirement by serving a notice of threemonths to the State Government or whether the State Government underthe Explanation attached to Rule 56 of the Fundamental Rules, isauthorised to decline the prayer for voluntary retirement in the publicinterest under clause (c) of Rule 56 of the Fundamental Rules as applicableto the State of Uttar Pradesh.

4. The respondent - Dr. Achal Singh was working as JointDirector in Medical, Health and Family Welfare, Lucknow Region,Lucknow filed an application dated 14.12.2016 for voluntary retirementw.e.f. 31.3.2017. Respondent – Dr. Ajay Kumar Tiwari was holding thepost of Joint Director, Medical, Health and Family Welfare, Devi PatanMandal, Gonda, filed an application on 28.2.2017 seeking voluntaryretirement w.e.f. 31.5.2017. Respondent - Dr. Rajendra KumarSrivastava was working as Senior Consultant, filed an application forvoluntary retirement on 15.4.2015 and respondent - Dr. Rajiv Chaudharywas working as Senior Consultant at District Hospital, Raibareli, he soughtvoluntary retirement by filing an application on 3.12.2016. The applicationsremained unattended and no order had been communicated, hence writpetitions were filed in the High Court. The respondents-doctors weremembers of the Provincial Medical Services.

5. The High Court in the impugned judgment and order hasobserved that it is the responsibility of the authorities to monitor thehealth system in the State and they have to sincerely examine the issuesas to how the working of the Government hospitals can be improved forthe betterment of the general public and find out why doctors are opting B

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Afor voluntary retirement every day. The High Court also observed thatthe doctors are not interested in joining the Government service whenfresh recruitments take place. The High Court has also noted that postsof Medical Officers are not being filled up on account of non-availabilityof candidates. The High Court has further noted that those who haveentered into Government service are continuously opting for voluntaryBretirement from service causing serious scarcity of doctors in Governmenthospitals and Primary Health Centres.

6. The High Court in the impugned judgment has also referredto the report of the MCI and the existing proportion of one doctor per2000 population. In fact, the number of doctors is much smaller than theCnumber given in the MCI report. The High Court also observed that thedoctors are being posted, in spite of scarcity, on the administrative poststhat causes wastage of specialised talent. The High Court has alsoobserved that the authorities must provide adequate infrastructure,working equipment, and a proper working environment. The hospitalsDshould be made excellent centres of health care. It should be the objectof the State Government to provide doctors with good opportunities soas to retain them in services. At the same time, the High Court has alsoobserved that in order to enhance the better medical facilities to the poorand needy people, it would be appropriate to maintain a balance betweenthe senior and junior doctors in each Primary Health Centres in ruralEand urban areas. There is a need to provide continuing medical educationto doctors and to hold conferences and seminars to exchange the latestviews/opinions/knowledge etc. and their performance in such eventsshould also be considered for promotion etc. At the same time, the HighCourt has allowed the writ petitions and treated the doctors to haveFretired voluntarily on the dates specified. Aggrieved thereby, the Statehas come up in these appeals.

7. It was urged by Mr. P.N. Mishra, learned senior counselappeared on behalf of appellant that as per Explanation attached to Rule56 of the Fundamental Rules as amended in the State of Uttar Pradesh,Git was open to the State Government to take a decision whether to retirean employee voluntarily under Rule 56(a) duly considering the publicinterest or decline the applications for voluntary retirement. It was alsosubmitted that there is no automatic retirement on the expiry of the periodof notice of three months served under Rule 56 as applicable in the Stateof Uttar Pradesh. There has to be an express order granting permissionH

to retire voluntarily, only thereafter an employee can be said to haveretired voluntarily.There is a scarcity of doctors in the Provincial HealthServices in the State of Uttar Pradesh, thus, the State Government hasnot accepted the applications for voluntary retirement. The directionsissued by the High Court is based on a misinterpretation of Rule 56 ofthe Fundamental Rules and is against the public interest.

8. It was contended by learned senior counsel appearing onbehalf of the appellants that in the case of Dr. Achal Singh, the StateGovernment has passed the order on 31.5.2017. The prayer for voluntaryretirement was rejected on the ground of lack of specialised doctors andin public interest and the notice seeking voluntary retirement under Rule56 was rejected and in other cases, the applications were kept pending.They further contended that Rule 56 contemplates a notice and not arequest for voluntary retirement. An employee is not required to givereason while giving a notice for voluntary retirement and in any suchevent, such reasons are not justiciable. It is a prerogative of the employeeto seek voluntary retirement. The right of the employee to retirevoluntarily corresponds with the right of the State Government to retirehim in the case of deficiency in services. As held in Dinesh ChandraSangma vs. State of Assam, (1977) 4 SCC 441, the rule provides rightto retire and not to seek it. The acceptance of the appointing authority isrequired only when the disciplinary enquiry is pending and its pendencyhas been communicated to the employee. Once notice of three monthsis given, the doctor is deemed to have retired and any action of attemptingto reject the notice of voluntary retirement after the said date is ineffectivein law. The decision has to be taken within a period of three months,otherwise, the employee is automatically deemed to have retired on thelapse of three months’ period. It was contended that the court not tointerfere with the principle of certainty of rule of law may be applied andlong-standing precedent of Dinesh Chandra Sangma (supra) may notbe dislodged and be applied to the cases at hand. The only condition ofvoluntary retirement is fulfilled after completion of 20 years of serviceand if it is allowed, it does not affect the availability of doctors. TheState has not taken care to recruit the doctors. It is not permissible towithhold the order of voluntary retirement. In case this Court does notagree with the decision rendered in Dinesh Chandra Sangma (supra),the matter may be referred to a larger Bench. The view taken by theHigh Court in the impugned judgment and order may be affirmed withthe rider of an imposition of the moratorium to balance the equities.

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A9.In order to appreciate the rival submissions, it is necessary toconsider the Fundamental Rules as amended in the State of Uttar Pradesh.The same is somewhat different from the rules framed in other States.Rule 56 of Fundamental Rules as amended in the State of Uttar Pradesh,is extracted hereunder:

“56.(a) Except as otherwise provided in this Rule, everyGovernment servant other than a Government servant in inferiorservice shall retire from service on the afternoon of the last dayof the month in which he attains the age of fifty eight years. Hemay be retained in service after the date of compulsory retirementwith the sanction of the Government on public grounds whichmust be recorded in writing, but he must not be retained afterthe age of 60 years[1] except in very special circumstances.

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(b) A Government servant in inferior service shall retire fromservice on the afternoon of the last day of the month in which heattains the age of sixty years. He must not be retained in serviceDafter that date, except in very special circumstances and withsanction of the Government.

(c) Notwithstanding anything contained in clause (a) or clause(b), the appointing authority may, at any time by notice to anyGovernment servant (whether permanent or temporary), withoutassigning any reason, require him to retire after he attains theage of fifty years or such Government servant may by notice tothe appointing authority voluntarily retire at any time after attainingthe age of forty-five years or after he has completed qualifyingservice of twenty years.

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(d) the period of such notice shall be three months:

Provided that-

(i) any such Government servant may by order of the appointingauthority, without such notice or by a shorter notice, be retiredforthwith at any time after attaining the age of fifty years, andon such retirement the Government servant shall be entitled to G

1 In the Medical, Health and Family Welfare Department in State Medical and HealthServices, the retirement age of Medical Officers in public interest has been approved as62 years in place of 60 years with certain conditions vide Notification No.2324/SEC-H2-5-2017-7(237)/2014 dated 31.5.2017.

claim a sum equivalent to the amount of his pay plus allowances,if any, for the period of the notice, or as the case may be, for theperiod by which such notice falls short of three months, at thesame rates at which he was drawing immediately before thisretirement;

(ii) it shall be open to the appointing authority to allow aGovernment servant to retire without any notice or by a shorternotice without requiring the Government servant to pay anypenalty in lieu of notice:

Provided further that such notice given by the Governmentservant against whom a disciplinary proceeding is pending orcontemplated, shall be effective only if it is accepted by theappointing authority, provided that in the case of a contemplateddisciplinary proceeding the Government servant shall be informedbefore the expiry of his notice that it has not been accepted:

Provided also that the notice once given by a Government servantunder clause (c) seeking voluntary retirement shall not bewithdrawn by him except with the permission of the appointingauthority.

(e) A retiring pension shall be payable and other retirementbenefits, if any, shall be available in accordance with and subjectto the provisions of the relevant Rules to every Governmentservant who retires or is required or allowed to retire under thisrule.

Provided that where a Government servant who voluntarily retiresor is allowed voluntarily to retire under this rule the appointingauthority may allow him, for the purposes of pension and gratuity,if any, the benefit of additional service of five years or of suchperiod as he would have served if he had continued till the ordinarydate of his superannuation, whichever be less; Explanation.- (1) The decision of the appointing authority underclause (c) to require the Government servant to retire as specifiedtherein shall be taken if it appears to the said authority to be inpublic interest, but nothing herein contained shall be construed torequire any recital, in the order, of such decision having beentaken in the public interest.

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(2) In order to be satisfied whether it will be in the public interestto require a Government servant to retire under clause (c), theappointing authority may take into consideration any materialrelating to the Government servant and nothing herein containedshall be construed to exclude from consideration –

(a) any entries relating to any period before such Governmentservant was allowed to cross any efficiency bar or before hewas promoted to any post in an officiating or substantive capacityor on an ad hoc basis; or B

(b) any entry against which a representation is pending, providedthat the representation is also taken into consideration along withthe entry; or C

(c) any report of the Vigilance Establishment constituted underthe Uttar Pradesh Vigilance Establishment Act, 1965.

(2A) Every such decision shall be deemed to have been taken inthe public interest.

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(3) The expression appointing authority means the authority whichfor the time being has the power to make substantiveappointments to the post or service from which the Governmentservant is required or wants to retire; and the expression‘qualifying service’ shall have the same meaning as in the relevantRules relating to retiring pension.

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(4) Every order of the appointing authority requiring aGovernment servant to retire forthwith under the first proviso toclause (d) of this rule shall have effect from the afternoon of thedate of its issue, provided that if after the date of its issue, theGovernment servant concerned, bona fide and in ignorance ofthat order, performs the duties of his office his acts shall bedeemed to be valid notwithstanding the fact of his having earlierretired.”

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GReading of the aforesaid rule makes it clear that an employee canbe retired by the Government after he attains the age of 50 years orGovernment servant may voluntarily retire at any time after attainingthe age of 45 years or after he has completed qualifying service of 20years under Rule 56(c). It is provided in the Rule 56 that Governmentmay retire a Government servant without any notice or by serving a H

shorter notice and on such retirement, the Government servant shall beentitled to claim a sum equivalent to the amount of his pay plus allowances,if any, for the period of notice or for the period it falls short of threemonths at the same rates at which he was drawing immediately beforehis retirement. It is also open to the Government to allow a Governmentservant to retire without any notice or by a shorter notice withoutrequiring the Government servant to pay any penalty in lieu of notice.The proviso to Rule 56(d) makes it clear that the notice given by theGovernment servant against whom a disciplinary proceeding is pendingor contemplated, shall be effective only if it is accepted by the appointingauthority and provided that in case of a contemplated disciplinaryproceeding, the Government servant shall be informed before the expiryof the notice that it has not been accepted. It is also provided that oncea notice is given by a Government servant seeking voluntary retirementshall not be withdrawn by him except with the permission of the appointingauthority.

Rule 56(e) provides that pension and other retiral benefits shall beavailable to every Government servant, who retires or is required orallowed to retire under the rule. Proviso to Rule 56(e) provides thatappointing authority at its discretion may allow benefits of additionalservice of 5 years to such employees who voluntarily retires or is allowedvoluntarily to retire under the rule for the purposes of pension and gratuityor of such period as he would have served if he had continued till theordinary date of his superannuation.

10. The explanation attached to Rule 56 makes it clear that thedecision of the appointing authority under clause (c) of Rule 56 to retirea Government servant shall be taken if it appears to be in public interest.The explanation is applicable to both the exigencies viz., whenGovernment retires an employee or when an employee seeks voluntaryretirement, not only when Government desires to retire an employee inpublic interest. The Explanation attached to Rule 56 as applicable in theState of Uttar Pradesh is clear and precise.

11. In our opinion, whether voluntary retirement is automatic oran order is required to be passed would depend upon the phraseologyused in a particular rule under which retirement is to be ordered orvoluntary retirement is sought. The factual position of each and everycase has to be seen along with applicable rules while applying a dictumof the Court interpreting any other rule it should be Pari Materia. Rule A

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A56(2) deals with the satisfaction of the Government to require aGovernment servant to retire in the public interest. For the purpose, theGovernment may consider any material relating to Government servantand may requisition any report from the Vigilance Establishment.

12. The respondents have relied on dictum in Dinesh ChandraBSangma vs. State of Assam, (1977) 4 SCC 441, a three-Judge Bench ofthis Court observed as under:

“7. Before we proceed further we may read F. R. 56 as amended:

F.R.56(a) The date of compulsory retirement of a Governmentservant is the date on which he attains the age of 55 years. Hemay be retained in service after this age with sanction of theState Government on public grounds which must be recordedin writing and proposals for the retention of a Governmentservant in service after this age should not be made except invery special circumstances.

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(b) Notwithstanding anything contained in these rules theappropriate authority may, if he is of the opinion that it is in thepublic interest to do so, retire Government servant by givinghim notice of not less than three months in writing or threemonths’ pay and allowances in lieu of such notice, after he hasattained fifty years of age or has completed 25 years of service,whichever is earlier.

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(c) Any Government servant may, by giving notice of not lessthan three months in writing to the appropriate authority, retirefrom service after he has attained the age of fifty years or hascompleted 25 years of service, whichever is earlier.

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It is clear from the above that under F. R. 56(b) the Governmentmay retire a Government servant in the public interest by givinghim three months’ notice in writing or three months’ pay andallowances in lieu thereof after he has attained the age of fiftyyears or has completed 25 years of service, whichever is earlier.

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8. As is well-known Government servants hold office during thepleasure of the President or the Governor, as the case may be,under Article 310 of the Constitution. However, the pleasuredoctrine under Article 310 is limited by Article 311(2). It is clearthat the services of a permanent Government servant cannot be H

terminated except in accordance with the rules made underArticle 309 subject to Article 311(2) of the Constitution and theFundamental Rights. It is also well-settled that even a temporaryGovernment servant or a probationer cannot be dismissed orremoved or reduced in rank except in accordance with Article311(2). The above doctrine of pleasure is invoked by theGovernment in the public interest after a Government servantattains the age of 50 years or has completed 25 years of service.This is constitutionally permissible as compulsory termination ofservice under F.R. 56 (b) does not amount to removal or dismissalby way of punishment. While the Government reserves its rightto compulsorily retire a Government servant, even against hiswish, there is a corresponding right of the Government servantunder F. R. 56(c) to voluntarily retire from service by giving theGovernment three months’ notice in writing. There is no questionof acceptance of the request for voluntary retirement by theGovernment when the Government servant exercises his rightunder F. R. 56(c). Mr. Niren De is therefore right in concedingthis position.

13. F.R. 56 is one of the statutory rules which binds theGovernment as well as the Government servant. The conditionof service which is envisaged in Rule 56(c) giving an option inabsolute terms to a Government servant to voluntarily retire withthree months’ previous notice, after he reaches 50 years of ageor has completed 25 years of service, cannot therefore be equatedwith a contract of employment as envisaged in Explanation 2 toRule 119.

14. The field occupied by F. R. 56 is left untrammelled byExplanation 2 to Rule 119. The words “his contract ofemployment” in Explanation 2 are clinching on the point.*********

17. The High Court committed an error on law in holding thatconsent of the Government was necessary to give legal effectto the voluntary retirement of the appellant under F.R. 56(c).Since the conditions of F.R. 56(c) are fulfilled in the instant case,the appellant must be held to have lawfully retired as notified byhim with effect from August 2, 1976.

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A13. It was submitted that despite the absence of any identicallanguage, the rule involved in Dinesh Chandra Sangma (supra) iscomparable with Uttar Pradesh Fundamental Rules and therefore, thejudgment is binding. The submission based upon the same cannot beaccepted and Rule 56(b)(c) came up for consideration was somewhatdifferent and there was no such Explanation to Rule 56.B

14. In Dinesh Chandra Sangma (supra) he was the District andSessions Judge at Dibrugarh in the State of Assam. On account ofdomestic troubles, he did not want to continue after attainment of theage of 50 years. He served a notice under Rule 56(c) as amended bythe Governor of Assam under Article 309 of the Constitution byCnotification dated 22.7.1975. The formal notice was served upon byhim. The Government allowed him to retire from the State GovernmentService and then there were certain developments in the Governmentand Government sought to retrace its steps and passed an order on28.7.1976, countermanding its earlier order allowing him to retire fromDservice. The High Court dismissed the writ application filed by him.

The Fundamental Rule as applicable in the State of Assam came up forconsideration. In our opinion, it was quite different. It is provided in theFundamental Rule 56(b) as applicable in the State of Assam that publicinterest was germane when a Government servant retires. Under Rule56(c), a Government servant may retire by giving notice of not less thanEthree months. Hence it was observed that there was no question ofacceptance of the request for voluntary retirement by the Governmentwhen the Government servant exercises his right under Rule 56(c). Notonly the rule was different it was passed on the concession also, however,the Explanation given to Rule 56 in the State of Uttar Pradesh makes itFcompletely different and the provisions in F.R.56(c) is also quite different.The rules as applicable in Assam for the purpose of retirement by theGovernment is contained in F.R.56(b) which require retirement in publicinterest whereas no such rider exist in F.R.56(c) when employee seekvoluntary retirement, whereas rule in the State of Uttar Pradesh both provisions are conjointly read not only the language is different and theGexplanation makes out the whole difference.

15. The Explanation attached to Rule 56 as applicable in the Stateof Uttar Pradesh makes it clear that when a decision is taken by theauthority under clause (c) of Rule 56, the right of an employee to retirecannot be said to be absolute as in the case of resignation, voluntary H

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retirement is with retiral benefits whereas it may not necessarily followin case of resignation. The decision under the rules in U.P. is to be basedupon considering the public interest, whether it is a case of retirement bythe Government or a case of a Government servant seeking voluntaryretirement. The decision rendered in Dinesh Chandra Sangma (supra)is distinguishable and was based on the differently couched rule. TheExplanation added makes the provisions different in the State of UttarPradesh. The decision in the case of Dinesh Chandra Sangma (supra)cannot be said to be operative being quite distinguishable.

16. Reliance has also been placed by the learned counsel for therespondents on the decision rendered by this Court in B.J. Shelat vs.State of Gujarat, (1978) 2 SCC 202. The Court observed thus:

“7. Rule 161 of the Bombay Civil Services Rules provides forthe retirement of Government servants before attaining the ageof superannuation. Rule 161(1)(aa) provides- Notwithstanding anything contained in clause (a) :

(1) An appointing authority shall, if he is of the opinion that it isin the public interest so to do, have the absolute right to retireany Government servant to whom clause (a) applies by givinghim notice of not less than three months in writing or threemonths’ pay and allowances in lieu of such notice:

Sub-rule (2)(ii) is as follows:

Any Government servant to whom clause (a) applies may, bygiving notice of not less than three months in writing to theAppointing Authority, retire from service … and in any othercase, after he has attained the age of 55 years.

There is no dispute that the Rule applicable is Rule 161 (2)(ii)and the appellant is entitled to retire by giving a notice of not lessthan 3 months after he has attained the age of 55 years. UnderRule 161(1)(aa)(1) the appointing authority has an absolute rightto retire any Government servant to whom clause (a) applies inpublic interest by giving him notice of not less than three monthsin writing or three months’ pay and allowances in lieu of suchnotice. But the Government servant has no such absolute right.

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A right is conferred on the Government servant under Rule161(2)(ii) to retire by giving not less than three months’ notice onhis attaining the prescribed age. Such a right is subject to theproviso which is incorporated to the sub-section which reads asfollows:

Provided that it shall be open to the appointing authority towithhold permission to retire to a Government servant who isunder suspension, or against whom departmental proceedingsare pending or contemplated, and who seeks to retire underthis sub-clause.

But for the proviso, a Government servant would be at liberty to’retire by giving not less than three months’ notice in writing tothe appointing authority on attaining the prescribed age. Thisposition has been made clear by this Court in Dinesh ChandraSangma v. State of Assam, (1977) 4 SCC 441, where the Courtwas considering the effect of the (Assam) Fundamental Rule56(c) which confers right on the Government servant to voluntaryretire. Rule 56(c) of the (Assam) Fundamental Rules runs asfollows :

(c) Any Government servant may, by giving notice of not lessthan three months in writing to the appropriate authority, retirefrom service after he has attained the age of fifty years or hascompleted 25 years of service, whichever is earlier.

On a construction of the Rule this Court held that the conditionof service which is envisaged in Rule 56(c) giving an option inabsolute terms to a Government servant to voluntarily retire withthree months’ previous notice, after he reaches 50 years of ageor has completed 25 years of service, cannot be equated with acontract of employment as envisaged in Explanation 2 to Rule119 of the Defence of India Rules and that Rule 56 is a statutorycondition which operated in law without reference to a contractof employment and when once the conditions of FundamentalRule 56(c) are fulfilled the Government servant must be held tohave lawfully retired. But for the proviso to Rule 161(2)(ii), thedecision of this Court in the case cited above would be applicableand the right would have been absolute. But the proviso hasrestricted the right conferred on the Government servant. Underthe proviso it is open to the appointing authority to withhold permission to retire to a Government servant when (1) he isunder suspension, or (2) against whom departmental proceedingsare pending or contemplated. Thus the permission to retire canbe withheld by the appointing authority either when theGovernment servant is under suspension or against whomdepartmental proceedings are pending or contemplated. It wassubmitted on behalf of the appellant that admittedly he was notunder suspension on the date when he attained the age of 55years and that no departmental proceedings were pending orcontemplated against him as required under the proviso. Nodepartmental proceeding was pending but on the facts one cannotsay that a proceeding was not under contemplation.

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9. Mr. Patel next referred us to the meaning of the word“withhold” in Webster’s Third New International Dictionary whichis given as “hold back” and submitted that the permission shouldbe deemed to have been withheld if it is not communicated. Weare not able to read the meaning of the word “withhold” asindicating that in the absence of a communication it must beunderstood as the permission having been withheld.”

The rule which came up for consideration in B.J. Shelat (supra)was the Rule 161 of Bombay Civil Services Rules, 1959. The Rule 161(1)(aa) provides that appointing authority may retire a Government servantin public interest by giving him a notice of not less than three months orthree months’ pay and allowances in lieu thereof. Rule 161(2)(ii) did notemploy the word public interest when the Government servant seeksvoluntary retirement. This has been added to the Rule applicable in theState of Uttar Pradesh. Neither there is any provision in the aforesaidrules that require to pass an order to decide an application by a Governmentservant seeking voluntary retirement that too considering the publicinterest. Under the rules, it was open to the appointing authority towithhold the permission to retire a Government servant who is undersuspension or against whom the departmental enquiry was pending orcontemplated. The rules considered by this Court in B.J. Shelat (supra)were different and did not contain the provision like Explanation asincorporated in the Fundamental Rule 56 as applicable in the State ofUttar Pradesh. In that context, the discussion has been made and cannotbe applied to a rule differently couched in U.P.

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A17. Reliance was also placed on the decision rendered by thisCourt in State of Bombay vs. United Motors, AIR 1953 SC 252 andBengal Immunity vs. State of Bihar, AIR 1955 SC 661, in which it hasbeen observed that Explanation can be read as proviso and it explain thescope of the main provision and the Explanation becomes part of themain section. There is no dispute with the aforesaid proposition. TheBExplanation in rules in question has to be applied to both the situations ascontemplated in Rule 56(c) and is applicable to both the exigencies notonly when Government decides to retire an employee, but also applicablewhere voluntary retirement is sought by an employee. It cannot be saidthat no further restriction by explanation has been added in a case whereCan employee has decided to obtain voluntary retirement. The publicinterest is the prime consideration on which authority has to decide sucha prayer as per the rules applicable in the State of Uttar Pradesh.

18. It was also urged that principles of certainty of rule of law aresquarely applicable in the present case. Reliance has been placed onDthe decision of State of Haryana vs. S.K. Singhal, (1999) 4 SCC 293.This Court considered Rule 5.32(b) of the Punjab Civil Services Rulesand observed thus:

“6. The said rule 5.32(B) of the Punjab Civil Service Rules,(Vol.II) reads as follows:

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“Rule 5.32(B)(1) At any time a government employee hascompleted twenty years’ qualifying service, he may, by givingnotice of not less than three months in writing to the appointingauthority retire from service. However, a government employeemay make a request in writing to the appointing authority toFaccept notice of less than three months giving reason therefor.On receipt of a request, the appointing authority may considersuch request for the curtailment of the period of notice of threemonths on merits and if it is satisfied that the curtailment of theperiod of notice will not cause any administrative inconvenience,the appointing authority may relax the requirement of notice ofGthree months on the condition that the government employeeshall not apply for commutation of a part of his pension beforethe expiry of the period of notice of three months.

(2) The notice of voluntary retirement given under sub-rule (1)shall require acceptance by the appointing authority subject toHRule 2.2, of Punjab Civil Services Rules Vol.II :

Provided that where the appointing authority does not refuseto grant the permission for retirement before the expiry of theperiod specified in sub-rule (1) supra, the retirement shallbecome effective from the date of expiry of the said period:

Provided further that before a government employee givesnotice of voluntary retirement with reference to sub-rule (1)he should satisfy himself by means of a reference to theappropriate authority that he has, in fact, completed twentyyears’ service qualifying for pension.”

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8. It will be noticed that under Rule 5.32(B), a governmentemployee who has completed 20 years of qualifying service may,by giving notice of not less than 3 months in writing to theappointing authority, retire from service. There is provision forrequesting for relaxation of the notice period of 3 months and forconsideration thereof. As to what the appointing authority is todo is governed squarely by sub-rule (2). That sub-rule statesthat the notice of voluntary retirement given under sub-rule (1)“shall” require acceptance by the appointing authority subject toRule 2.2 of the Punjab Civil Services Rules (Vol.II). Acceptanceof the request is subject to Rule 2.2 of the Rules. But the provisoto sub-rule (2) of Rule 5.32(B) states that if the permission toretire is not refused within the period specified in sub-rule (1),the retirement shall become effective from the date of expiry ofthe period. Therefore, it is clear that if a person has completed20 years qualifying service and has given a notice under Rule5.32(B) of 3 months (or if his request for relaxation of 3 monthsis accepted), then the request “shall” be accepted subject toinvoking the provision of Rule 2.2 of the Punjab Civil ServicesRules (Vol.II). Under Rule 2.2, the “future good conduct” of anemployee is an implied condition of every grant of pension. Inother words, what all it means is that even if the acceptance ofthe voluntary retirement is mandatory, there is an obligation caston the retired employee to maintain good conduct after suchretirement. The words “future good conduct” mean good conductafter retirement. If the employee does not continue to maintaingood conduct after retirement, then the Government can withholdor withdraw the pension or a part of it in case he is convicted of A

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serious crime or in case he be guilty of grave misconduct. Sucha decision to withhold or withdraw the whole or part of pensionwould be final and conclusive, that is to say, so far as thegovernmental hierarchy is concerned. It will be noticed that Rule2.2 does not obstruct the voluntary retirement to come into forceautomatically on the expiry of 3 months and it only enableswithdrawal or withholding of pension subject to certain conditions,to a retired employee.

9. The employment of government servants is governed by rules.These rules provide a particular age as the age of superannuation.Nonetheless, the rules confer a right on the Government tocompulsorily retire an employee before the age of superannuationprovided the employee has reached a particular age or hascompleted a particular number of years of qualifying service incase it is found that his service has not been found to besatisfactory. The rules also provide that an employee who hascompleted the said number of years in his age or who hascompleted the prescribed number of years of qualifying servicecould give notice of, say, three months that he would voluntarilyretire on the expiry of the said period of three months. SomeRules are couched in language which results in an automaticretirement of the employee upon expiry of the period specifiedin the employee’s notice. On the other hand, certain rules insome other departments are couched in language which makesit clear that even upon expiry of the period specified in the notice,the retirement is not automatic and an express order grantingpermission is required and has to be communicated. Therelationship of master and servant in the latter type of rulescontinues after the period specified in the notice till suchacceptance is communicated; refusal of permission could alsobe communicated after 3 months and the employee continues tobe in service. Cases like Dinesh Chandra Sangma v. State ofAssam, (1977) 4 SCC 441, B.J. Shelat v. State of Gujarat, (1978)2 SCC 202 and Union of India v. Sayed Muzaffar Mir, (1995)Supp (1) SCC 76 belong to the former category where it is heldthat upon the expiry of the period, the voluntary retirement takeseffect automatically as no order of refusal is passed within thenotice period. On the other hand H.P. Horticultural ProduceMarketing & Processing Corpn. Ltd. v. Suman Behari Sharma,

(1996) 4 SCC 584 belongs to the second category where thebye-laws were interpreted as not giving an option “to retire” butonly provided a limited right to “seek” retirement thereby implyingthe need for a consent of the employer even if the period of thenotice has elapsed. We shall refer to these two categories insome detail.

13. Thus, from the aforesaid three decisions it is clear that if theright to voluntarily retirement is conferred in absolute terms as inDinesh Chandra Sangma case by the relevant rules and there isno provision in rules to withhold permission in certaincontingencies the voluntary retirement comes into effectautomatically on the expiry of the period specified in the notice.If, however, as in B.J. Shelat case and as in Sayed MuzaffarMir case, the concerned authority is empowered to withholdpermission to retire if certain conditions exist, viz., in case theemployee is under suspension or in case a departmental enquiryis pending or is contemplated, the mere pendency of thesuspension or departmental enquiry or its contemplation doesnot result in the notice for voluntary retirement not coming intoeffect on expiry of the period specified. What is further neededis that the concerned authority concerned must pass a positiveorder withholding permission to retire and must also communicatethe same to the employee as stated in B.J. Shelat case and inSayed Muzaffar Mir case before the expiry of the notice period.Consequently, there is no requirement of an order of acceptanceof the notice to be communicated to the employee nor can it besaid that non-communication of acceptance should be treated asamounting to withholding of permission.

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18. In the case before us sub-rule (1) of Rule 5.32(B)contemplates a “notice to retire” and not a request seekingpermission to retire. The further “request” contemplated by thesub-rule is only for seeking exemption from the 3 months’ period.The proviso to sub-rule (2) makes a positive provision that “wherethe appointing authority does not refuse to grant the permissionfor retirement before the expiry of the period specified in Sub-rule (1), the retirement shall become effective from the date of A

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expiry of the said period. The case before us stands on a strongerfooting than Dinesh Chandra Sangma case so far as theemployee is concerned. As already stated Rule 2.2 of PunjabCivil Service Rules Vol.II only deals with a situation of withholdingor withdrawing pension to a person who has already retired.”

B19. Rule 5.32(b)(2) of Punjab Rules clearly provide that wherethe appointing authority does not refuse to grant the permission to retirebefore the expiry of the period in sub-rule (1), the retirement shall becomeeffective from the date of the expiry of the said date. There is no suchprovision of notice becoming effective from the date of the expiry of theperiod in the Fundamental Rules as applicable to the State of UttarCPradesh. In the context of the proviso, the notice becomes effectivefrom the date of expiry of the period, in that context this Court has madeobservations in the aforesaid dictum that Rule 2.2 does not obstruct thevoluntary retirement to come into force automatically on the expiry ofthree months.D

20. In the State of Haryana (supra), this Court also observedthat some rules are couched in language, which results in an automaticretirement of the employee upon the expiry of the period specified in theemployee’s notice. On the other hand, certain rules in some otherdepartments are couched in the language which makes it clear that evenEupon expiry of the period specified in the notice, the retirement is notautomatic and an express order granting permission is required and hasto be communicated. The relationship of master and servant in the lattertype of rules continues after the period specified in the notice till suchacceptance is communicated and the refusal of permission could also becommunicated after three months and the employee continues to be inFservice. It is the aforesaid later observations made by this Court, whichare squarely applicable to the rule in question as applicable in the Stateof Uttar Pradesh.

21. In Himachal Pradesh Horticultural Produce Marketing& Processing Corporation Ltd. vs. Suman Behari Sharma (1996) 4GSCC 584, the Court considered the language employed in the applicablebye-laws. It was observed that if the permission for voluntary retirementis not granted, the employee would not be able to retire. The Courtobserved:

“8. Clause (2) of the bye-law inter alia provides for voluntaryHretirement from service of HPMC on completion of 25 years’

service or on attaining the age of 50 years whichever is earlier.The employee, however, has a right to make a request in thatbehalf and his request would become effective only if he is‘permitted’ to retire. The words “may be...permitted at hisrequest” clearly indicate that the said clause does not confer onthe employee a right to retire on completion of either 25 years’service or on attaining the age of 50 years. It confers on theemployee a right to make a request to permit him to retire.Obviously, if request is not accepted and permission is not grantedthe employee will not be able to retire as desired by him. Para(5) of the bye-law is in the nature of an exception to para (2) andpermits the employee who has not completed 25 years’ serviceor has attained 50 years of age to seek retirement if he hascompleted 20 years’ satisfactory service. He can do so by givingthree months’ notice in writing. The contention of the learnedCounsel for HPMC was that though para 5 of the bye-lawrelaxes the conditions prescribed by para (2), the relaxation isonly with respect to the period of service and attainment of ageof 50 years and it cannot be read to mean that the requirementof permission is dispensed with. On the other hand, the learnedcounsel for the respondent submitted that as para 5 opens withthe words “Notwithstanding the provision under para (2)” andthe words “may be...permitted at his request” are absent thatwould mean that the employee has a right to retire after givingthree months’ notice and no acceptance of such a request isnecessary. We cannot agree with the interpretation canvassedby learned counsel for the respondent. The bye-law has to beread as a whole. Para (2) thereof confers a right on the employeeto request for voluntary retirement on completion of 25 years’service or on attaining the age of 50 years, but his desire wouldmaterialise only if he is permitted to retire and not otherwise.Ordinarily, in a matter like this an employee who has put in lessnumber of years of service would not be on a better fooling thanthe employee who has put in longer service. It could not havebeen the intention of the rule-making authority while framingpara 5 of the bye-law to confer on such an employee a betterand a larger right to retire after giving three months’ notice inwriting. The words “seek retirement” in para 5 indicate that theright which is conferred by it is not the right to retire but a right AB

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to ask for retirement. The word “seek” implies a request by theemployee and corresponding acceptance or permission byHPMC. Therefore, there cannot be automatic retirement orsnapping of service relationship on expiry of three months’period.”

B22. In Padubidri Damodar Shenoy vs. Indian Airlines Ltd. &Anr. (2009) 10 SCC 514, a question arose of voluntary retirement fromservice which was not acceded to by the competent authority byaccording approval. The matter travelled to this Court. It was held thatvoluntary retirement did not come into force. The Court observed:

C“33. There is nothing to indicate in Regulation 12 that if employerdecides to withhold approval of voluntary retirement, such refusalof approval must be communicated to the petitioner during theperiod of notice. True it is that notice of three months for voluntaryretirement given by an employee covered by Clause (b) remainsvalid even if no communication is received within the notice periodDbut it becomes effective only on its approval by the competentauthority. As a matter of fact, this seems to have been understoodby both the parties.

34. The appellant issued a notice of voluntary retirement underRegulation 12(b) on 30-9-2005. The notice period was to expireEon 31-12-2005. It is an admitted position that the competentauthority neither gave an approval nor indicated disapproval tothe appellant within the notice period of three months. Theemployee never treated that there has been cessation ofemployment on the expiry of three months’ notice period inasmuchas he continued to attend his duties after 31-12-2005 until 30-6-F2006. It is only by his letter dated 8-6-2006 that the appellantrequested the respondent to relieve him in terms of his noticedated 30-9-2005 by 30-6-2006 and he stopped attending workfrom 1-7-2006. The letter dated 8-6-2006 does not make anymaterial difference as the fact of the matter is that after theGexpiry of the notice period, the appellant continued to attend hisduties for many months thereafter.

35. By the letter dated 15-9-2006 the respondent communicatedto the appellant that his application for voluntary retirement underService Regulation 12(b) has not been acceded to by thecompetent authority. Since the notice for voluntary retirement H

by an employee who has not attained 55 years but has completed20 years of continuous service, under the proviso appended toRegulation 12(b), is subject to approval by the competent authorityand that approval was not granted, the voluntary retirement ofthe appellant never came into effect.”

23. In C.V. Francis vs. Union of India & Ors. (2013) 14 SCC486, this Court observed that it would depend upon the language used inthe rule whether notice for voluntary retirement would come into effectautomatically. There has to be a stipulation in the scheme providing thateven without acceptance of his application, it would be deemed that theapplication for voluntary retirement had been accepted. There is no suchprovision in the rules in question. In C.V. Francis (supra), this Courtobserved:

“13. It is well-established that a voluntary retirement schemeintroduced by a company, does not entitle an employee as a matterof right to the benefits of the Scheme. Whether an employeeshould be allowed to retire in terms of the scheme is a decisionwhich can only be taken by the employer company, except incases where the scheme itself provides for retirement to takeeffect when the notice period comes to an end. A voluntaryretirement scheme introduced by a company is essentially a partof the company’s desire to weed out the deadwood.

14. The petitioner’s contention that his application for voluntaryretirement came into effect on the expiry of the period of noticegiven by him must fail, since there was no such stipulation in thescheme that even without acceptance of his application it wouldbe deemed that the petitioner’s voluntary retirement applicationhad been accepted. Once that is not accepted, the entire case ofthe petitioner falls to the ground. The decision in Tek Chandcase (2001) 3 SCC 290 will not, therefore, have any applicationto the facts of this case, particularly when the petitioner’sapplication for voluntary retirement had not been accepted andhe had been asked to rejoin his services. The petitioner was fullyaware of this position as he continued to apply for leave afterthe notice period was over.”

24. Decision in Tek Chand vs. Dile Ram (2001) 3 SCC 290 hasbeen relied upon by the respondents. This Court considered Rule 48-A(2) of the Central Civil Services (Pension) Rules, 1972, proviso to said A

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Arule contained a provision where the appointing authority did not refuseto grant the permission for retirement before the expiry of the periodspecified in the said notice, the retirement shall become effective fromthe date of expiry of the said period. The relevant observations areextracted hereunder:

B“31. It is not disputed that the appointing authority did notrefuse to grant the permission for retirement before expiry ofthe period specified in the said application dated 5.12.1994 givenby Nikka Ram. Further, no communication whatsoever was madeto him within the said period. During the course of the argumentbefore the High Court, the learned counsel for the parties referredCto Rule 48-A of the Rules, of course, placing their owninterpretation. Since the said Rule is material and has bearing onthe question to be determined, it is extracted below:

D“48-A. Retirement on completion of 20 years’ qualifyingservice. - (1) At any time after a government servant hascompleted twenty years’ qualifying service, he may, by givingnotice of not less than three months in writing to the appointingauthority, retire from service:

EProvided that this sub-rule shall not apply to a governmentservant, including scientist or technical expert who is -

(i) on assignments under the Indian Technical and EconomicCooperation (ITEC) Programme of the Ministry of ExternalAffairs and other aid programmes.

F(ii) posted abroad in foreign-based offices of the Ministries /Departments.

(iii) on a specific contract assignment to a foreign Government,unless, after having been transferred to India, he has resumedthe charge of the post in India and served for a period of notGless than one year.

(2) The notice of voluntary retirement given under sub-rule (1)shall require acceptance by the appointing authority:

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period specified in the said notice, the retirement shall becomeeffective from the date of expiry of the said period.”

33. It is clear from sub-rule (2) of the Rule that the appointingauthority is required to accept the notice of voluntary retirementgiven under sub-rule (1). It is open to the appointing authority torefuse also, on whatever grounds available to it, but such refusalhas to be before the expiry of the period specified in the notice.The proviso to sub-rule (2) is clear and certain in its terms. If theappointing authority does not refuse to grant the permission forretirement before the expiry of the period specified in the saidnotice, the retirement sought for becomes effective from thedate of expiry of the said period. In this case, admittedly, theappointing authority did not refuse to grant the permission forretirement to Nikka Ram before the expiry of the period specifiedin the notice dated 5.12.1994. The learned Senior Counsel forthe respondent argued that the acceptance of voluntary retirementby appointing authority in all cases is mandatory. In the absenceof such express acceptance the government servant continuesto be in service. In support of this submission, he drew ourattention to Rule 56(k) of Fundamental Rules. He also submittedthat acceptance may be on a later date, that is, even after theexpiry of the period specified in the notice and the retirementcould be effective from the date specified in the notice. Sincethe proviso to sub-rule (2) of Rule 48-A is clear in itself and thesaid Rule 48-A is self-contained, in our opinion, it is unnecessaryto look to other provisions, more so in the light of law laid downby this Court. An argument that acceptance can be even longafter the date of the expiry of the period specified in the noticeand that the voluntary retirement may become effective fromthe date specified in the notice, will lead to anomalous situation.Take a case, if an application for voluntary retirement is acceptedfew years later from the date specified in the notice and voluntaryretirement becomes operative from the date of expiry of thenotice period itself, what would be the position or status of sucha government servant during the period from the date of expiryof the notice period up to the date of acceptance of the voluntaryretirement by the appointing authority? One either continues in A

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service or does not continue in service. It cannot be both that thevoluntary retirement could be effective from the date of expiryof the period mentioned in the notice and still a Governmentservant could continue in service till the voluntary retirement isaccepted. The proviso to sub-rule (2) of Rule 48-A of the Rulesdoes not admit such situation.”

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35. In our view, this judgment fully supports the contention urgedon behalf of the appellant in this regard. In this judgment, it isobserved that there are three categories of rules relating to seekingof voluntary retirement after notice. In the first category,voluntary retirement automatically comes into force on expiry ofnotice period. In the second category also, retirement comesinto force unless an order is passed during notice periodwithholding permission to retire and in the third category voluntaryretirement does not come into force unless permission to thiseffect is granted by the competent authority. In such a case,refusal of permission can be communicated even after the expiryof the notice period. It all depends upon the relevant rules. In thecase decided, the relevant Rule required acceptance of noticeby appointing authority and the proviso to the Rule further laiddown that retirement shall come into force automatically if theappointing authority did not refuse permission during the noticeperiod. Refusal was not communicated to the respondent duringthe notice period and the Court held that voluntary retirementcame into force on expiry of the notice period and subsequentorder conveyed to him that he could not be deemed to havevoluntary retired had no effect. The present case is almostidentical to the one decided by this Court in the aforesaiddecision.”

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The rule which came up for consideration was entirely different.There is no provision contained in rule in question in the case at hand likeGthe proviso to Rule 48-A(2) referred to above due to which the retirementshall become effective from the date of expiry of period of notice incase the same was not refused.

25. In our considered opinion, under Rule 56 as applicable in theState of Uttar Pradesh, notice of voluntary retirement does not comeHinto effect automatically on the expiry of the three months period. Under the rule in question, the appointing authority has to accept the notice forvoluntary retirement or it can be refused on permissible grounds.

26. In our opinion, the Rule 56(c) does not fall in the categorywhere there is an absolute right on the employee to seek voluntaryretirement. In view of the aforesaid dictum and what is held by thisCourt, we find that the prayer made to make a reference to a largerBench, in case this Court does not follow the earlier decision is entirelydevoid of merit as on the basis of what has been held by this Court in theearlier decisions, we have arrived at the conclusion. This Court hasauthoritatively laid down the law umpteen number of time.

27. Reliance has also been placed on behalf of respondents onthe decision in Mahant Dhanmir vs. Madan Mohan, (1987) Supp SCC528, in which this Court observed that law should not be unsettled unlessthere are compelling reasons. There is no dispute that the said propositionhas already been held. There is no question of law unsettling the law butis of its application, which unfortunately appears as against the interestsof the respondents in view of language employed in the rule in question.An attempt in vain has been made by the respondents to wriggle out ofthe clutches of the various decisions by raising the aforesaid argument.

28. It was also urged that the Rule 56(c) does not require theemployee to give reasons for voluntary retirement. No doubt under Rule56(c) there is no requirement for an employee to give any reason, however,while considering the prayer, the appointing authority has to keep in mindthe public interest as provided in the Explanation attached to F.R. 56.

29. Learned counsel also urged that outside the proviso to Rule56(d), there is no general right of appointing authority to reject the noticeof voluntary retirement of an employee on the ground of public interest.For this purpose, threefold submission has been made. Firstly, that theprinciple of liberty under the Constitution and specifically Part III of theConstitution requires that any restriction on freedom and liberty musthave the sanction of the law and that law must be just, fair and reasonable.Presently, there is no law as enacted under Article 309 of the Constitution.Secondly, the right of Government employee and that of the Governmentare delineated in terms of Fundamental Rules governing State Governmentemployees. Thus, if any Fundamental Rules do not restrict the generalliberty of an employee or do not empower the employer to act in acertain way, an action otherwise would be impermissible. For thispurpose, reliance has been placed on Moti Ram Deka vs. G.M., North A

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AEast Frontier Railway, (1964) 5 SCR 683. It was also submitted thatpublic interest restriction that applies to the State in the case of compulsoryretirement, applies on account of Article 311. The Court observed:

27. In this connection, it is necessary to emphasise that the rule-making authority contemplated by Art. 309 cannot be validlyBexercised so as to curtail or affect the rights guaranteed to publicservants under Art. 311(1). Art. 311(1) is intended to afford asense of security to public servants who are substantivelyappointed to a permanent post and one of the principal benefitswhich they are entitled to expect is the benefit of pension afterrendering public service for the period prescribed by the Rules.CIt would, we think, not be legitimate to contend that the right toearn a pension to which a servant substantively appointed to apermanent post is entitled can be curtailed by Rules framed underArt. 309 so as to make the said right either ineffective or illusory.Once the scope of Art. 311(1) and (2) is duly determined, it mustDbe held that no Rule framed under Art. 309 can trespass on therights guaranteed by Art. 311. This position is of basic importanceand must be borne in mind in dealing with the controversy in thepresent appeals.

30. The reliance placed on Moti Ram Deka (supra) is of no availEas it has no application to the instant case as no right conferred by Article311 of the Constitution can be said to have been taken away and servicerule dehors of it can provide for the concept of public interest.

31. There is no doubt about it that Rule 56(d) provides that wherea disciplinary enquiry is pending or contemplated and in the case ofFcontemplated disciplinary enquiry, the Government servant shall beinformed before the expiry of notice that it has not been accepted. Theproviso to Rule 56(d) has no application where a disciplinary enquiry isnot contemplated or pending. When the proviso itself is not applicable,in no case it will dilute the provisions of Explanation with respect toexigencies mentioned in clause (c) of Rule 56.G

32. The submission made upon principle of liberty and itscurtailment, the law must be just, fair and reasonable can also not beaccepted as the Fundamental Rules are statutory rules and have beenmade by the Governor under section 241(2)(b) of the Government ofIndia Act,1935 and provisions of rule in question cannot be said to beHunfair, unreasonable and oppressive.

33. The concept of liberty not to serve when the public interestrequires cannot be attracted as retirement which carries pecuniary benefitscan be subject to certain riders. The general public has the right toobtain treatment from super skilled specialists, not second rates. InJagadish Saran vs. Union of India, (1980) 2 SCC 768, the Courtobserved thus:

“44. Secondly, and more importantly, it is difficult to denounce orrenounce the merit criterion when the selection is for post-graduate or post-doctoral courses in specialised subjects…. Tosympathise mawkishly with the weaker sections by selectingsub-standard candidates, is to punish society as a whole bydenying the prospect of excellence say in hospital service. Eventhe poorest, when stricken by critical illness, needs the attentionof super-skilled specialists, not humdrum second-rates. So it isthat relaxation on merit, by overruling equality and qualityaltogether, is a social risk where the stage is post-graduate orpost-doctoral.”

34. The concept of public interest can also be invoked by theGovernment when voluntary retirement sought by an employee, wouldbe against the public interest. The provisions cannot be said to be violativeof any of the rights. There is already paucity of the doctors as observedby the High Court, the system cannot be left without competent seniorpersons and particularly, the High Court has itself observed that doctorsare not being attracted to join services and there is an existing scarcityof the doctors. Poorest of the poor obtain treatment at the Governmenthospitals. They cannot be put at the peril, even when certain doctorsare posted against the administrative posts. It is not that they have beenposted against their seniority or to the other cadre. Somebody has toman these administrative posts also, which are absolutely necessary torun the medical services which are part and parcel of the right to lifeitself. In the instant case, where the right of the public are involved inobtaining treatment, the State Government has taken a decision as perExplanations to decline the prayer for voluntary retirement consideringthe public interest. It cannot be said that State has committed any illegalityor its decision suffers from any vice of arbitrariness.

35. The decision of the Government cater to the needs of thehuman life and carry the objectives of public interest. The respondentsare claiming the right to retire under Part III of the Constitution such A

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Aright cannot be supreme than right to life. It has to be interpreted alongwith the rights of the State Government in Part IV of the Constitution asit is obligatory upon the State Government to make an endeavour underArticle 47 to look after the provisions for health and nutrition. Thefundamental duties itself are enshrined under Article 51(A) which requireobservance. The right under Article 19(1)(g) is subject to the interest ofBthe general public and once service has been joined, the right can onlybe exercised as per rules and not otherwise. Such conditions of servicemade in public interest cannot be said to be illegal or arbitrary or takingaway the right of liberty. The provisions of the rule in question cannotbe said to be against the Constitutional provisions. In case of voluntaryCretirement, gratuity, pensions, and other dues etc. are payable to theemployee in accordance with rules and when there is a requirement ofthe services of an employee, the appointing authority may exercise itsright not to accept the prayer for voluntary retirement. In case all thedoctors are permitted to retire, in that situation, there would be a chaosand no doctor would be left in the Government hospitals, which wouldDbe 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 aGovernment servant may be extended benefit of an additional period offive years then an actual period of service rendered by him there is thecorresponding obligation to serve in dire need.E

36. It was urged that in the State of Tamil Nadu, Government hasamended the rules not to retire Government doctors, if there is anyscarcity of doctors it is open to the Government of Uttar Pradesh toamend its rules. In India, the Government sponsored Medical Servicesto cater to the needs of poorest of the poor and have-nots otherwiseFthere is the commercialisation of the charitable medical profession. Inother States too, it is seen sometime that when a doctor is transferredfrom one place to another, the doctor forwards application resigningfrom the post or seeks voluntary retirement as he does not want to moveout 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 scenarioGpeople cannot be deprived of the services of good doctors. In view ofthe scarcity of the doctors and the unfortunate privatisation andcommercialisation of the noble medical profession, for maintaining theefficiency of the State Medical Services, the decision taken by theGovernment is permissible as per rules and cannot be interfered with.HUnfortunately, the High Court has given the aforesaid observations pointing out the shortage of specialised doctors and at the same time has ultimatelydecided against the State Government on wrong interpretation withoutconsidering the Explanation attached to Rule 56 applicable in the Stateof Uttar Pradesh. The preface given by the High Court is just oppositeto its conclusion. The High Court ought to have rejected and not to allowthe prayer of voluntary retirement made by the doctors.

37. It was urged that some of the doctors suffered from neckpain etc. as such prayer ought to have been accepted but they have notgiven any such serious ailments which may make their functioning in thehospital difficult in any manner whatsoever. It was the pretext that wasused by them to seek voluntary retirement. It is for the Government toconsider the efficacy. Doctors too have right under the Rights of Personswith Disabilities Act, 2016, they can continue in services unfettered bysuch ailments.

38. Under Article 47 it is the duty of the State to improve thepublic health, which is a primary duty under the Directive Principles ofthe State Policy and the statutory expression which may be enforced.When we consider Article 51A containing Fundamental Duties, it is aduty of every citizen under Article 51A(g) to have compassion for livingcreatures and to have humanism is also contemplated under Article 51A(h)and to strive towards excellence in all spheres of individual and collectiveactivity so that the nation constantly rises to higher levels of endeavoursand achievement. It cannot be done by depriving poorest of the pooressential medical services and to leave them at the mercy of doctors.There cannot be an exodus from the Government Medical Services atlarge, which is being projected in the instant case, definitely this cannotbe permitted to happen within four corners of law as it has to be livingorganism and has to live up to the essence and spirit of constitution andcannot ignore and overlook needs of poorest strata of the society.

39. It was urged that the State Government is discriminatingbetween the doctors in the Provincial Medical Services with the doctorsworking in the State-owned Hospitals and Medical Colleges. In theMedical Colleges etc. doctors are being permitted to retire. Instancesof 7 doctors have been given, who were permitted to retire in 2016, 2017and 2018. Doctors of Medical Colleges are on a different footing thanthat of Provincial Medical Services. Even otherwise in view of thescarcity of the doctors, no ground of equality can be claimed and thedoctors of different services form different class, apart from that there A

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Ais no concept of negative equality that too against the public interest. Incase, 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 Dewan vs. State of Punjab, ILR 1 Punjab & Haryana 46; State ofPunjab vs. Dr. Harbir Singh Dhillon, 2010 SCC Online P&H 6159Band Dr. Kalpana Singh vs. State of Rajasthan, (2014) SCC OnlineRaj 6253, were cited to show that the decision in Dinesh ChandraSangma(supra) had been followed. We have considered the aforesaiddecisions and we find that it would depend upon the scheme of theRules. Each and every judgment has to be considered in the light of theprovisions which came up for consideration and questionit has decided,Clanguage employed in the rules, and it cannot be said to be of generalapplication as already observed by this Court in State of Haryana(supra).

41. It was also contended that the State of Uttar Pradesh mayamend rules, in our opinion there is no such necessity in view of theDExplanation the State has already amended its rules so as to enable it topass an order with respect to retirement whether it is at the instance ofthe Government or at the instance of the employee for both the publicinterest is germane.

42. The submission was also made with respect to the impositionEof moratorium period of one year on retirement and that there should bethe recruitmentof the doctors and thereafter acceptance of voluntaryretirement by the State. We do not propose to venture into it. The actionof the State Government was appropriate in disallowing the prayerseeking voluntary retirement. The Government may fill the vacancies ifFany. But that would not bring doctors of experience at senior level andexodus of doctors cannot be permitted to weaken the services when thepublic interest requires to serve for the sake of efficient medicalprofession and fulfil Directive Principles of State Policy once they foundstatutory expression in the rules cannot be made mockery. When servicesare required, denial of voluntary retirement is permissible under the RulesGapplicable in the State of Uttar Pradesh.

43. In view of the above, we allow the civil appeals and herebyset aside the impugned judgment and order passed by the High Court.The applications for intervention and to implead stand allowed.

Devika Gujral Appeals allowed.

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