STATE OF WEST BENGAL & ORS. versus DR. TONMOY MONDAL on 12 March 2019

1. Leave granted.

2. The question involved in the appeal is the interpretation of Rule75 of West Bengal Service Rules, 1971 [hereinafter ‘Rules’] framed inexercise of powers conferred by the proviso to Article 309 of theEConstitution of India.

3. The respondent-Dr. Tonmoy Mondal had joined services initiallyon 20.10.1986 as a Medical Officer in West Bengal Health Services onad hoc basis. He was confirmed in the said post vide Notification dated15.11.2002. On 16.11.2011, he sought voluntary retirement. The prayerFmade by the respondent was rejected by the Government vide orderdated 22.02.2013 on the ground that it was not considered appropriate inthe public interest to accept the request for voluntary retirement. Followingis the relevant portion of the order:

“We know that the public interest is the welfare or wellbeing ofGgeneral people. The welfare of the general public is ensured,inter alia, through recognization, promotion, and protection of thesame by the Government or its agencies. The Government or itsdepartment cannot adversely affect the rights, health, and financeof the public at large. The applicant, i.e. Dr. Tanmoy Mondal is a H

doctor and his service is indispensable in public interest. At thisstage, the Health & Family Welfare Department is having manyvacancies and it is necessary to retain doctors to provide serviceto people.

Considering all these aspects, I am inclined to hold that it isnot in public interest to retire Dr. Mondal. Consequently, it appearsto me that the prayer of Dr. Tanmoy Mondal should be rejected.Moreover, voluntary retirement of a member of Health Servicesis not maintainable as per provisions laid down in DCRB Rules.”

4. The respondent questioned the aforesaid order by way of filingOriginal Application No.754 of 2013 before the West BengalAdministrative Tribunal. The Tribunal vide order dated 18.11.2013 allowedthe application and quashed the order passed by the State governmentdeclining voluntary retirement. The State of West Bengal filed WritPetition being WPST No.208/2014 in the High Court at Calcuttachallenging the same.

5. The Division Bench of the High Court initially vide judgmentand order dated 22.08.2014 opined that according to Note 3 below Rule75(aaa) of the Rules, every case of retirement under Rule 75 is to beexamined by the appointing authority on the facts of the case concerned.Permission granted to one Medical Officer to retire under the Rule cannotnecessarily lead to the conclusion that another Medical Officer seekingto retire under the Rule is also entitled to the permission. The extent ofpublic interest involved in the case is to be examined by the appointingauthority objectively and the opinion formed by the appointing authorityas to the existence of public interest cannot be judicially reviewed unlessit is the case that it was recorded with malice or ex facie without anybasis. It was opined that the application for voluntary retirement underRule 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 anabsolute right. It is not a case of resignation. While setting aside theorder of the Tribunal dated 18.11.2013, the High Court upheld the orderpassed by the State Government declining to accept the prayer forvoluntary retirement.

6. A Special Leave Petition was preferred in this Court againstthe decision dated 22.08.2014 rendered by the High Court. However, it A

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Awas withdrawn on the ground that there were certain errors apparenton the face of the record of the order passed by the High Court and assuch the petitioner wanted to file a review petition. Permission was grantedto withdraw the Special Leave Petition with liberty to file a review petition.

7. Thereafter, pursuant to the aforesaid order, review petitionBR.V.W. No.18/2015 in WPST No.208 of 2014 was filed in the HighCourt. The same has been allowed by the impugned judgment and orderdated 20.01.2017 in R.V.W. No.18/2015 and the decision in Writ PetitionNo.208/2014 has been reversed. Same has been questioned by theState of West Bengal in the appeal.

C8. The Division Bench while allowing the review petition hasobserved that on a proper interpretation, Note 3 of Rule 75 could nothave been rationally or logically applied in respect of sub-Rule (aaa) ofRule 75 of the Rules. There was an error apparent on the face of therecord in the judgment and order dated 22.08.2014 as such the samewas required to be interfered with. Hence review has been allowed andDthe order passed by the Tribunal has been restored.

9. Shri Anand Grover, learned Senior counsel on behalf of theappellant(s) has submitted that it was not proper for the Division Benchto review the previous judgment and order as no ground within theparameters of review jurisdiction was available. Apart from that, theEinterpretation put upon Rule 75 (aaa) of the Rules is not correct and thecase is clearly covered by the decision of this Court in State of UttarPradesh v. Achal Singh - 2018 (10) scale 89.

10. On the other hand, Mr. S.B. Upadhyay, learned Senior counselappearing on behalf of the respondent has supported the judgment andForder passed by the High Court and contended that Note 3 was in factnot inserted vide order dated 23.06.1973 as mentioned in the notificationdated 15.08.1971, there is a wrong reference to the insertion to the Note3 of Rule 75(aaa) vide notification of 23.06.1973. He submitted that theconcept of public interest is not germane in the case of voluntaryGretirement. Note 3 is attracted only in the case of retirement ordered inthe public interest under Rule 75 (aa) of the Rules. Thus, no case forinference with the impugned judgment and order of the High Court ismade out.

11. We are constrained to observe that merely on entertaining adifferent view on the interpretation of Rule 75, it was not open to theH

Division Bench to review previous judgment and order passed by adifferent Division Bench of the High Court on 22.08.2014. A fundamentaljurisdictional error has been committed by the Division Bench of theHigh Court while setting aside the order dated 22.08.2014. It has actedas if it was exercising appellate power while exercising the reviewjurisdiction. There was no such error apparent on the face of the recordin the previous judgment and order dated 22.08.2014 warranting reviewby the different bench of the High Court. No doubt, there was a changein the composition of the Division Bench. The judgment and order passedby earlier Bench was required to be equally respected and not to bereadily interfered with, until and unless there is an apparent error on theface of the record. Merely by entertaining a different view as to theinterpretation of a particular provision, a judgment cannot be reviewed.

12. The Division Bench which earlier decided the matter hadlaboured hard to interpret Rule 75 by analyzing it more effectively andrightly than done while reviewing the order. We are of the opinion thatthe Division Bench ought not to have reviewed the judgment and orderat all as no ground was available within the parameters of reviewjurisdiction. No ground had been raised even in the review application toconstitute an error apparent on the face of record much less reflected inthe impugned order passed in the review so as to set aside the previousjudgment and order.

13. Apart from that, yet another jurisdictional error has beencommitted. Once the Court had found that there was sufficient reasonfor 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 previousjudgment and order have been set aside and the main case has also beendisposed of without hearing it again separately. Thus, the proper procedurehas not been followed.

14. When we come to the merits of the case, from the interpretationof Rule 75, it is apparent that it deals with retirement on attaining the ageof superannuation in the public interest, and voluntary retirement. Rule75 is extracted herein:

“75 (a) Except as otherwise provided in these rules, a Governmentemployee other than a member of the Group D service shall retire A

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from service compulsorily with effect from the afternoon of thelast day of the month in which he attains the age of fifty-eightyears;

provided that a Government employee other than a member ofthe Group D service whose date of birth is the first of a monthshall retire from service with effect from the afternoon of tin; lastday of the preceding month of attaining the age of fifty-eight years; provide further that the age-limit for retirement as prescribed inthis rule shall not be applicable in cases where higher age limit upto 60 years for retirement has been fixed under any general orspecial orders of Government.

Note-In cases where the Matriculation certificate does not showthe actual date of birth and instead shows the age of the candidateas on the 1[st] March of the years in which the examination washeld in terms of years and months only excluding days, Governmentmay alter the date of birth recorded in the Service Book, tocorrespond to the actual date of birth, if the Government employeeconcerned is able to produce acceptable documentary evidencein the form of an extract from Birth Register or Admission Registerof the institution concerned etc. In support of the actual date ofbirth claimed by him, and a decision to retire him shall be taken onthe basis of such altered date of birth. Where, however, the dateof birth of a Government employee has been recorded as the firstday of a month on the basis of Matriculation certificate showingthe age as on the 1[st] March of the year in which the examinationwas held in terms of years and months only and where it is notpossible to ascertain the exact date of birth on the basis of anyacceptable documentary evidence like extract from the BirthRegister or Admission Register of the institution concerned etc.,it shall be presumed that the actual date of birth of the Governmentemployee was a day other than the first date of the month and hemay be allowed to retire on the last day of the same month insteadof the last…of the previous month,”

75(aa) Notwithstanding anything contained in the rule, theappointing authority shall, if it is of opinion that it is in the publicinterest so to do, have the absolute right to retire any Government employee by giving him notice of not less than 3 months in writingor 3 months’ pay and allowances in lieu of such notice.

(i) if he is in Group A or Group B (erstwhile gazetted) service orpost and had entered Government service before attaining theage 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 fromthe Government employee retired prematurely or otherwise, it isdecided to reinstate the Government employee in service, theauthority ordering reinstatement may regulate the intervening pe-riod between the date of premature retirement and the date ofreinstatement by the grant of leave or, by treating it as dies nondepending upon the facts an circumstances of the case; Provided that the intervening period shall be treated as a periodspent on duty for all purposes including pay and allowances, if it isspecifically held by the authority ordering reinstatement that thepremature retirement was itself not justified in the circumstancesof the case, or if the order of premature retirement is set aside bythe Court of law.

(ii) Where the order of premature retirement is set aside by aCourt of law with specific directions in regard to regulation of theperiod between the date of premature retirement and the date ofreinstatement and no further appeal is proposed to be filed, theaforesaid period shall be regulated in accordance with the directionsof the court.

75(aaa)Any government employee may, by giving notice of notless than 3 months in writing to the appointing authority, retirefrom Government service after he has attained the age of 50years, if he is in Group A or Group B (erstwhile gazetted) serviceor post, and had entered Government service before attaining theage of 35 years; and in all other cases, after he has attained theage of 55 years, provided that it shall be open to the appointingauthority to withhold permission to a Government employee undersuspension who seeks to retire under this sub-rule.

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Note 1 - In computing the three months notice period referred toin sub-rule(aa) and (aaa) the date of service of the notice and thedate 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 employeeBattains the age specified in the said sub-rules, provided that theretirement takes place after the Government employee, hasattained the specified age.

Note 3 - The appointing authority should invariably keep on recordthat in his opinion it is necessary to retire the Government employeein pursuance of the aforesaid rule in public interest.

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16. Rule 75(a) deals with the retirement on attaining the age ofsuperannuation. The expression “compulsory” retirement has beenwrongly used in the said provision. What is meant by compulsoryDretirement probably is that no one to continue in service after attainingthe age of 58 years. The retirement on attaining the age of superannuationis not a concept of compulsory retirement as understood in the servicejurisprudence. Be that as it may, the State may be well advised to amendthe rule.

17. Rule 75 (aa) deals with retirement in public interest. As amatter of fact, the concept of compulsory retirement is the one which isto be found in Rule 75 (aa). It provides that there is an absolute rightwith the State Government in the public interest to retire a person bygiving a notice of not less than 3 months in writing or 3 months’ pay andallowances in lieu of such notice.

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18. When we come to Rule 75 (aaa) of the Rules, it is apparentthat the same deals with the voluntary retirement of a governmentemployee. Any Government employee by giving notice of not less than3 months in writing or 3 months’ pay and allowances in lieu of suchnotice, to the appointing authority, may retire from government serviceGafter 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 servicebefore attaining the age of 35 years, and in all other cases, after he hasattained the age of 55 years, provided that it shall be open to the appointing authority to withhold permission to a government employee undersuspension who seeks to retire under this sub-rule.

19. Note 1 to Rule 75 (aaa) provides that in computing the threemonths notice period referred to in Rule 75 (a) and (aaa) date of serviceof the notice and date of expiry shall be excluded.

20. Note 2 specifically deals with three months notice referred inRule (aa) and sub-rule (aaa) that it may be given before the governmentemployee attains the age specified in the said sub-rules provided that theretirement takes place after the Government employee has attained thespecified age.

21. However, Note 3 which is relevant is not confined in operationto sub-rule (aaa) of Rule 75. It is clearly provided in Note 3 that theappointing authority should invariably keep on record that in his opinion itis necessary to retire the Government employee in pursuance of theaforesaid rule in public interest. Obviously, the Note 3 is applicable toboth Rule 75 (aa) and 75 (aaa) as was rightly opined by the DivisionBench while rendering the judgment and order dated 22.08.2014.

22. The question is no more res integra. It has been consideredby this Court in Achal Singh (supra), in which the following observationshave been made:

“33. The concept of liberty not to serve when the public interestrequires cannot be attracted as retirement which carries pecuniarybenefits can be subject to certain riders. The general public hasthe right to obtain treatment from super skilled specialists, notsecond rates. In Jagadish Saran v. Union of India (1980)2 SCC768, the Court observed thus:

“44. Secondly, and more importantly, it is difficult to denounceor renounce the merit criterion when the selection is forpostgraduate or postdoctoral courses in specializedsubjects…...To sympathize mawkishly with the weaker sectionsby selecting substandard candidates is to punish society as awhole by denying the prospect of excellence say in hospitalservice. Even the poorest, when stricken by critical illness,needs the attention of super skilled specialist, not humdrumsecond rates. So it is that relaxation on merit, by overruling A

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equality and quality altogether, is a social risk where the stageis postgraduate or postdoctoral.

34. The concept of public interest can also be invoked by theGovernment when voluntary retirement sought by an employee,would be against the public interest. The provisions cannot besaid to be violative of any of the rights. There is already a paucityof the doctors as observed by the High Court, the system cannotbe left without competent senior persons and particularly, the HighCourt has itself observed that doctors are not being attracted tojoin services and there is an existing scarcity of the doctors. Poorestof the poor obtain treatment at the Government hospitals. Theycannot be put at the peril, even when certain doctors are postedagainst the administrative posts. It is not that they have beenposted against their seniority or to the other cadre. Somebody hasto man these administrative posts also, which are absolutelynecessary to run the medical services which are part and parcelof the right to life itself. In the instant case, where the right of thepublic is involved in obtaining treatment, the State Governmenthas taken a decision as per Explanations to decline the prayer forvoluntary retirement considering the public interest. It cannot besaid that State has committed any illegality or its decision suffersfrom any vice of arbitrariness.

35. The decision of the Government caters to the needs of humanlife and carry the objectives of public interest. The respondentsare claiming the right to retire under Part III of the Constitutionsuch right cannot be supreme than right to life. It has to beinterpreted along with the rights of the State Government in PartIV of the Constitution as it is obligatory upon the State Governmentto make an endeavour under Article 47 to look after the provisionsfor health and nutrition. The fundamental duties itself are enshrinedunder Article 51(A) which require observance. The right underArticle 19(1) (g) is subject to the interest of the general public andonce service has been joined, the right can only be exercised asper rules and not otherwise. Such conditions of service made inpublic interest cannot be said to be illegal or arbitrary or takingaway the right of liberty. The provisions of the rule in questioncannot be said to be against the constitutional provisions. In case of voluntary retirement, gratuity, pensions, and other dues etc. arepayable to the employee in accordance with rules and when thereis a requirement 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 to retire,in that situation, there would be a chaos and no doctor would beleft in the Government hospitals, which would be against theconcept of the welfare state and injurious to public interest. Inthe case of voluntary retirement, there is provision in Rule 56 thata Government servant may be extended benefit of additional periodof five years then an actual period of service rendered by himthere is the corresponding obligation to serve in dire need.”

22. In view of the aforesaid discussion, we are of the consideredopinion that in the previous judgment and order passed by the DivisionBench on 22.08.2014 had taken a correct view on merits and was illegallyinterfered with while exceeding the jurisdiction by the subsequent DivisionBench while reviewing it and dismissing the Writ Petition being WPSTNo.208 of 2014 by the impugned judgment and order dated 20.01.2017.

23. The respondent is directed to report back to the duty withinone month from today. He will not be entitled to the wages for theperiod he has not served and that would also not be counted towards theperiod of service for the purpose of retiral benefits.

24. The impugned order dated 20.01.2017 is set aside and thejudgment and order dated 22.08.2014 is hereby restored. The appeal isallowed. No costs.

Kalpana K. Triapathy

Appeal allowed.

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