Case details

Court: Supreme Court of India
Decided: 10 December 2019
Bench: R. Banumathi
Citations: 2019 INSC 1350[2019] 14 S.C.R. 849
Type: Judgment (Appeal(s) allowed)

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Citation: [2019] 14 S.C.R. 849 (search it on the Supreme Court's e-SCR portal)

Supreme Court of India

STATE OF UTTAR PRADESH AND OTHERS versus SUDARSHANA CHATTERJEE on 10 December 2019

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Conclusion

STATE OF UTTAR PRADESH AND OTHERS

SUDARSHANA CHATTERJEE(Civil Appeal No. 9300 of 2019)DECEMBER 10, 2019

[R. BANUMATHI AND A. S. BOPANNA, JJ.]

Service Law:

Retiral benefits – Denial of – Propriety – Employee (aLecturer in a Medical College in State of U.P.) applied for the postof Associate Professor/Reader in a Medical College in the Stateof Chhattisgarh through proper channel – After being appointedshe applied for two years leave for joining the post in Chhattisgarh– While the leave application was pending, she joined the post inChhattisgarh – After superannuation from the ChhattisgarhCollege, she sought retiral benefits from the State of U.P. whichwas denied – Writ petition challenging denial of retiral benefits– High Court allowed the petition directing the State to pass freshorders in the light of the observations made by the Court – TheState considered the case afresh and rejected the case of theemployee – Writ petition against the order – High Court directedpersonal presence of the officer who had passed the order –Petition was allowed holding that request for voluntary retirementcould not have been rejected as the same already stood quashedby earlier order of High Court – Appeal to Supreme Court – Held:The employee is not entitled to retiral benefits – The High Courtwhile directing the State to pass fresh orders was not right in puttingrestriction that the same would be passed in the light ofobservations made by the Court – High Court was also not rightin directing personal presence of the Officer.

Allowing the appeals, the Court

HELD: 1. The High Court did not keep in view that eventhough the respondent’s leave application dated 30.04.2004was pending consideration, the respondent on her own wentand joined Chhattisgarh Institute of Medical Sciences (CIMS)on 15.06.2004 and this has been suppressed by the respondent.The respondent remained in the service of two State

CDEF

AGovernments i.e. State of UP and State of Chhattisgarh-CIMSand she is alleged to have drawn salary from both the StateGovernments for the period from June, 2004 to October, 2004.The High Court did not keep in view the conduct of therespondent. [Para 16] [856-E-G]

BState of Uttar Pradesh and others v. Achal Singh(2018) 17 SCC 578 : [2018] 9 SCR 912 – referredto.

2. The High Court while directing the State Governmentto pass fresh orders in accordance with law, was not right inCputting restrictions upon the appellants by saying that the freshorders will have to be passed in the light of the observationsmade by the High Court. [Para 17] [857-A-B]

3. The High Court was not right in directing the PrincipalSecretary to appear in the court and explain the reason forDpassing the order dated 04.01.2019. Observing that merelybecause an order has been passed by the officer, it does notwarrant the personal presence of the officer in the Court andsummoning of officers to the Court and eventually affect thepublic at large. [Para 19] [857-F-G]

EShri N.K. Janu, Deputy Director, Social WelfareForestary Division, Agra and Others v. LakshmiChandra (2019) 6 SCALE 236 – relied on.

Case Law Reference

[2018] 9 SCR 912referred toPara 1F(2019) 6 SCALE 236relied onPara 19

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9300of 2019.

From the Judgment and Order dated 24.08.2018 of the HighGCourt of Judicature at Allahabad in Writ-A No. 65084 of 2015.

With

Civil Appeal No. 9301 of 2019.

Ms. Aishwarya Bhati, Sr.Adv. (AAG, U.P), Ankit Goel, Ms. KirtiHKhangoret, Gopal Singh Chauhan, Advs. for the Appellants.

Kuriakose Varghese, V. Shyamohan, Surya Prakash, Ms. PiyushaSingh, Ms. Isha Ghai, Kmnp Law, Advs. for the Respondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J.

1. Leave granted.

2. Appeal arising out of SLP(C) No.10087 of 2019 has been filedby the appellants against the judgment dated 24.08.2018 passed by theHigh Court of Judicature at Allahabad in Writ-A No.65084 of 2015 inand by which the High Court has quashed the order dated 01.04.2015passed by the appellants denying retiral benefits to the respondent onaccount of her having joined the service in Chhattisgarh Institute ofMedical Sciences and the High Court directed the appellants to passfresh order in accordance with law in the light of observations madeby the High Court. Appeal arising out of SLP (C) No.10542 of 2019has been filed against the interim order dated 15.03.2019 passed in Writ-A No.3884 of 2019 whereby the High Court directed the PrincipalSecretary, Department of Medical Education and Training to appearin-person and explain how the claim of the respondent has been rejectedby order dated 04.01.2019 despite judgment of the High Court dated24.08.2018.

3. Briefly stated facts of the case are that the respondent wasappointed to the post of Lecturer (Anesthesia) vide appointment orderdated 25.03.1982 and she joined at Motilal Nehru Medical College,Allahabad. While working on the post of Lecturer (Anesthesia) atMotilal Nehru Medical College, Allahabad, the respondent on 20.09.2003sought a no-objection certificate (NOC) from the appellants in orderto apply for the post of Associate Professor (Anesthesia) atChhattisgarh Institute of Medical Sciences (CIMS), Bilaspur. Pursuantto her applying to CIMS, the respondent received an appointment letterdated 22.04.2004 from CIMS. Upon getting appointed at CIMS, therespondent sent a leave application dated 30.04.2004 addressed to theSecretary, Medical Education Department seeking sanction of leave fortwo years without pay for joining on the post of Reader in theDepartment of Anesthesia at CIMS. Though her leave application waspending consideration, the respondent joined as Lecturer in theAnesthesia Department, CIMS on 15.06.2004. The respondent madeanother application for grant of one month earned leave on 23.07.2004by citing the reason “personal work”. The said application was A

Aconsidered and leave was sanctioned vide order dated 07.08.2004 bygranting the respondent earned leave from 23.07.2004 to 22.08.2004.The respondent remained in the service of the appellants till 22.08.2004;thereafter she has not resumed duty with the appellants. It is statedthat the respondent was drawing salary from two State Governmentsi.e. State of UP and also from CIMS-State of Chhattisgarh.B

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

5. After retiring from CIMS, the respondent sent a letter to theSecretary, Department of Medical Education, Government of UP onD02.11.2012 seeking payment of gratuity, pension and leave encashmentdue on retirement (i.e. on 30.09.2006). In this letter, it was submittedby the respondent that she had applied for the post of Reader at CIMSthrough the proper channel and had also applied for NOC from theGovernment/appellant. According to the respondent, she repeatedlyapplied for NOC. As there was no response, the respondent had noEoption but to leave the UP Medical Services and join the services atCIMS in June, 2004.

6. The appellants rejected the request of the respondent videreply dated 01.04.2015 observing that the respondent accepted the postat CIMS without obtaining approval/NOC from the competent authorityFand without getting her leave sanctioned. In light of her workingelsewhere, without leave having been granted and there being noprovision with regard to ex-post facto grant of leave and approval forworking elsewhere, the request of the respondent was found to be notacceptable.

7. Being aggrieved, the respondent filed Writ A. No. 65084 ofG2015 seeking issuance of writ of certiorari for quashing the order dated01.04.2015 and also seeking issuance of writ of mandamus directingthe appellants to sanction and pay all retiral benefits of the respondentalong with arrears and also interest.

8. When the said writ petition was pending, vide order datedH16.02.2016, the appellants rejected the application of the respondent seeking voluntary retirement and payment of retiral benefits. In the saidorder, the appellants observed that the respondent without approval fromthe State Government, left the services in the State of UP and joinedanother service in State of Chhattisgarh – CIMS. The appellants heldthat after joining another service, the respondent no longer remains inthe service of the State of UP and as per the rules, the respondent isnot entitled to get the retiral benefits on attaining the age ofsuperannuation.

9. The writ petition filed by the respondent in Writ A. No.65084of 2015 was allowed by the High Court vide impugned judgment dated24.08.2018. The High Court observed that Rule 73 of the FundamentalRules of the Financial Handbook has no application to the facts of thepresent case. The High Court opined that it is not a case where therespondent had remained absent without leave or had overstayed herleave and the respondent throughout submitted her leave applicationsrequesting permission for grant of leave to join CIMS and when noaction was taken, the respondent applied for leave without pay and sheactually sought voluntary retirement and that was also never consideredby the appellants. Pointing out that the respondent had been submittingher leave applications from 2004 onwards, the High Court concludedthat the services of the respondent in Motilal Nehru Medical Collegecould not have been ignored for the purpose of pension/notional pensionand on those findings, the High Court quashed the order dated01.04.2015. The High Court remitted the matter to the PrincipalSecretary, Medical Education and Training Department, Governmentof Uttar Pradesh to examine the case of the respondent again and passfresh orders in accordance with law. Though the High Court hasdirected the State to examine the case of the respondent in accordancewith law, the High Court directed that the examination of the case ofthe respondent should be in the light of the observations made by theHigh Court in the impugned order dated 24.08.2018.

10. Aggrieved by the decision dated 24.08.2018, the appellantsfiled the appeal arising out of SLP(C) No.10087 of 2019 before theSupreme Court contending that the impugned judgment suffers frompatent error in finding that the respondent is entitled for retiral duesfrom the appellant-State of UP, when in fact, the respondent had joinedthe service of CIMS and got promoted there and eventually retiredtherefrom upon attaining the age of superannuation. According to theappellant-State, the respondent never returned to resume her service AB

Awith the appellant-State of UP after 22.08.2004 (up to which date, herleave was sanctioned by the appellants) and even prior to thereon, shehad joined the service of the State of Chhattisgarh – CIMS on15.06.2004. As per Fundamental Rules 67-68 as applicable to theemployees of the appellant-State, leave cannot be claimed as a matterof right and the case of the respondent is “abandonment of her service”Band in such a situation, there is no question of her becoming entitled tovoluntary retirement. Contention of the appellant is that the High Courterred in holding that the respondent is entitled to voluntary retirementmerely on account of having submitted her application to that effect inthe light of the judgment of the Supreme Court in State of UttarCPradesh and others v. Achal Singh (2018) 17 SCC 578 whereinthe Supreme Court held that under Rule 56 as applicable in the Stateof UP, notice of voluntary retirement does not come into effectautomatically on the expiry of the three months period. It was held thatunder the rule, the appointing authority has to accept the notice forvoluntary retirement or it can be refused on permissible grounds.D

11. SLP(C) No.10087 of 2019 was filed on 05.04.2019 with adelay of 134 days. Even before the SLP was filed by the appellant-State challenging the impugned judgment of the High Court in Writ A.No.65084 of 2018 dated 24.08.2018, the respondent had initiatedcontempt proceedings in Contempt Application (Civil) No.6822 of 2018Eagainst the officers of the appellant-State alleging wilful disobedienceof the impugned judgment of the High Court dated 24.08.2018. TheHigh Court entertained the contempt petition and in view of the contemptproceedings, the appellants passed the order dated 04.01.2019 wherebythe claim of the respondent was considered afresh and the same wasrejected by passing a speaking order. The contempt petition wasFdisposed of by the High Court vide order dated 31.01.2019 observingthat the order dated 04.01.2019 passed by the Principal Secretary,Department of Medical Education and Training has given rise to a freshcause of action and that the “direction contained in the order dated24.08.2018 has been given effect to upon passing of the order datedG04.01.2019” and accordingly, closed the contempt proceedings.

12. Challenging the order dated 04.01.2019, the respondent filedWrit A. No.3884 of 2019. In the said writ petition, the High Court passedthe order dated 15.03.2019 wherein the High Court observed that theorder dated 04.01.2019 could not have been passed since the orderHrejecting the request for voluntary retirement already stood quashed in terms of the judgment in Writ A. No.65084 of 2015 rendered inter-parties. Being aggrieved, the appellants have preferred appeal arisingout of SLP(C) No.10542 of 2019 before the Supreme Court on20.04.2019.

13. Ms. Aishwarya Bhati, learned Senior counsel appearing forthe appellants submitted that when in the Writ A. No.65084 of 2015,the High Court has directed the authorities to consider the case of therespondent afresh and in accordance with law, the order dated04.01.2019 having been passed in accordance with law, the High Courtwas not right in directing the Principal Secretary to be present andexplain as to how the appellants proceeded to reject the claim of therespondent which already stood quashed in terms of the judgmentrendered inter-parties in Writ A. No.65084 of 2015. It was submittedthat the approach of the High Court in directing the personal appearanceis contrary to the well-settled principles as held in Shri N.K. Janu,Deputy Director, Social Welfare Forestary Division, Agra andothers v. Lakshmi Chandra 2019 (6) SCALE 236 wherein theSupreme Court inter alia held that the practice of summoning officersto court is not proper and does not serve the purpose of administrationof justice. Drawing our attention to the various leave applications andthe order passed by the appellants, the learned Senior counsel submittedthat pursuant to the appointment letter issued from CIMS on 22.04.2004,the respondent had joined in CIMS even in June, 2004. The learnedSenior counsel further submitted that the High Court erred in ignoringthe conduct of the respondent and was not right in holding that therespondent is entitled to voluntary retirement merely on account of hersubmitting applications. Lastly, it has been contended that the entireconduct of the respondent has throughout been to mislead andmisrepresent the facts and in her applications submitted to the appellantseven after she joined the service at CIMS, she had deliberately beenrepresenting herself as “Associate Professor, Motilal Nehru MedicalCollege, Allahabad” which she did solely in order to give the impressionthat she was still in the service at Allahabad.

14. Mr. Kuriakose Varghese, learned counsel for the respondentsubmitted that the respondent is aged 65 years and due to her old age,after completing 22 full years of service with the appellant-State, shewanted to shift to Chhattisgarh where she could live with her daughterand work at CIMS and in spite of number of applications, letters andrepresentations seeking permission from the appellants to join service A

Ain CIMS, the respondent could not obtain permission from the appellants.Drawing our attention to various leave applications submitted by therespondent, the learned counsel has submitted that since the respondenthas not received any reply from the authorities, she had no other optionexcept to join the services of the Institution-CIMS, Bilaspur on15.06.2004. The learned counsel further submitted that the appellantsBvide order dated 15.12.2005 have superannuated the respondent witheffect from 30.09.2006 which still remains valid and the appellants areestopped from taking a contrary view about the service of therespondent by contending that the respondent has abandoned the serviceof the appellants. The learned counsel further submitted that in CIMS, CRegular Pension Scheme ceased to operate from 2004 and anyemployee who joined the service after 01.01.2004 was not entitled forOld Pension Scheme. It was submitted that since the respondent hadthe leave to her credit and it is not a case of “absence” or “overstay”,the High Court rightly directed the appellants to sanction and pay allthe retiral benefits and the impugned orders do not warrant interference.D15. We have heard learned counsel for both the parties andconsidered the contentions and perused the impugned judgment andmaterials on record.

16. The High Court, with due respect, in our view, did not keepin view that even though the respondent’s leave application datedE30.04.2004 was pending consideration, the respondent on her own wentand joined CIMS on 15.06.2004 and this has been suppressed by therespondent. It is also pertinent to note that after joining CIMS andworking in CIMS, the respondent made another application for grantof one month earned leave on 23.07.2004 by citing the reason “personalFwork”. This application came to be sanctioned vide order dated07.08.2004 by granting the respondent earned leave from 23.07.2004to 22.08.2004. In this manner, the respondent remained in the serviceof two State Governments i.e. State of UP and State of Chhattisgarh-CIMS and she is alleged to have drawn salary from both the StateGovernments for the period from June, 2004 to October, 2004. TheGHigh Court, in our view, did not keep in view the conduct of therespondent. The High Court appears to have proceeded merely on theground that no orders came to be passed on the leave applications filedby the respondent.

17. Be that as it may, in Writ A. No.65084 of 2015, though theHHigh Court directed the State Government to pass fresh orders in accordance with law, while directing the State Government to pass freshorders in accordance with law, the High Court, in our view, was notright in putting restrictions upon the appellants by saying that the freshorders will have to be passed in the light of the observations made bythe High Court. In such view of the matter, we are of the view thatthe order passed by the High Court dated 24.08.2018 cannot be sustainedand is liable to be set aside.

18. While disposing Writ A. No.65084 of 2015, the High Courtdirected the Principal Secretary (Medical Education and TrainingDepartment), Government of U.P. to examine the case of therespondent and pass fresh orders in accordance with law. Accordingly,the Principal Secretary has passed the order on 04.01.2019 wherebythe claim of the respondent was considered afresh and the same wasrejected by passing a speaking order. The respondent filed Writ-ANo.3884 of 2019 challenging the order dated 04.01.2019. Whileentertaining the said writ petition of the respondent, vide the impugnedorder dated 15.03.2019, the High Court observed that the order dated04.01.2019 could not have been passed since the order dated 01.04.2015was already quashed by the High Court by finding that the respondentis entitled to pension and further for adjustment of the period of herabsence from the Motilal Nehru Medical College, Allahabad till the timeof her joining CIMS against such leave as may be available to heraccount and for voluntary retirement. The High Court has observedthat in the light of its earlier order dated 24.08.2018, the order dated04.01.2019 could not have been passed and directed the PrincipalSecretary (Medical Education and Training Department), Governmentof U.P. to appear before the court and explain.

19. The High Court, in our view, was not right in directing thePrincipal Secretary to appear in the court and explain the reason forpassing the order dated 04.01.2019. Observing that merely because anorder has been passed by the officer, it does not warrant the personalpresence of the officer in the Court and summoning of officers to theCourt and eventually affect the public at large, in Shri N.K. Janu,Deputy Director Social Forestary Division, Agra and Others v.Lakshmi Chandra 2019 (6) SCALE 236, the Supreme Court heldas under:- “22. Having said so, we find that the High Court was not justifiedin passing orders from time to time to secure presence of the A

Aofficers. The officers of the State discharge public functions andduties. The orders are generally presumed to be passed in goodfaith unless proved otherwise. The officers pass orders as acustodian of public money. Therefore, merely because an orderhas been passed, it does not warrant their personal presence.The summoning of officers to the court to attend proceedings,Bimpinges upon the functioning of the officers and eventually it isthe public at large who suffer on account of their absence fromthe duties assigned to them. The practice of summoning officersto court is not proper and does not serve the purpose ofadministration of justice in view of the separation of powers ofCthe Executive and the Judiciary. If an order is not legal, the Courtshave ample jurisdiction to set aside such order and to issue suchdirections as may be warranted in the facts of the case.”

The above observation squarely applies to the case in hand. WhenWrit-A No.65084 of 2015 was disposed of directing the PrincipalDSecretary to pass orders in accordance with law, the Principal Secretaryconsidered the matter afresh and passed the speaking order dated04.01.2019. Merely because the Principal Secretary has passed the saidorder, the High Court, in our view, was not right in directing the presenceof Principal Secretary in the Court and explain as to the reasons inpassing the said order dated 04.01.2019. The impugned order datedE15.03.2019 passed in Writ A. No.3884 of 2019 is set aside and theappeal arising out of SLP(C) No.10542 of 2019 is allowed.

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

Kalpana K. TripathyH