Leave granted.
The question involved in the appeal is the
interpretation of Rule 75 of West Bengal Service Rules,
1971 [hereinafter ‘Rules’] framed in exercise of powers
conferred by the proviso to Article 309 of the
Constitution of India.
The respondent-Dr. Tonmoy Mondal had joined services
initially on 20.10.1986 as a Medical Officer in West
Bengal Health Services on ad hoc basis. He was confirmed
in the said post vide Notification dated 15.11.2002. On
16.11.2011, he sought voluntary retirement. The prayer
made by the respondent was rejected by the Government vide
order dated 22.02.2013 on the ground that it was not
considered appropriate in the public interest to accept
the request for voluntary retirement. Following is the
relevant portion of the order:
or wellbeing of general people. The welfare of the
recognization, promotion, and protection of the same
by the Government or its agencies. The Government or
its department cannot adversely affect the rights,
health, and finance of the public at large. The
applicant, i.e. Dr. Tanmoy Mondal is a doctor and
his service is indispensable in public interest. At
this stage, the Health & Family Welfare Department
is having many vacancies and it is necessary to
retain doctors to provide service to people.
Considering all these aspects, I am inclined
to hold that it is not in public interest to retire
Dr. Mondal. Consequently, it appears to me that the
prayer of Dr. Tanmoy Mondal should be rejected.
Moreover, voluntary retirement of a member of Health
Services is not maintainable as per provisions laid
down in DCRB Rules."
The respondent questioned the aforesaid order by way
of filing Original Application No.754 of 2013 before the
West Bengal Administrative Tribunal. The Tribunal vide
order dated 18.11.2013 allowed the application and quashed
the order passed by the State government declining
voluntary retirement. The State of West Bengal filed Writ
Petition being WPST No.208/2014 in the High Court at
Calcutta challenging the same.
The Division Bench of the High Court initially vide
judgment and order dated 22.08.2014 opined that according
to Note 3 below Rule 75(aaa) of the Rules, every case of
retirement under Rule 75 is to be examined by the
appointing authority on the facts of the case concerned.
Permission granted to one Medical Officer to retire under
the Rule cannot necessarily lead to the conclusion that
another Medical Officer seeking to retire under the Rule
is also entitled to the permission. The extent of public
interest involved in the case is to be examined by the
appointing authority objectively and the opinion formed by
the appointing authority as to the existence of public
interest cannot be judicially reviewed unless it is the
case that it was recorded with malice or ex facie without
any basis. It was opined that the application for
voluntary retirement under Rule 75 (aaa) of the Rules has
nothing to do with the right not to work. The question is
whether the right to seek voluntary retirement is an
absolute right. It is not a case of resignation. While
setting aside the order of the Tribunal dated 18.11.2013,
the High Court upheld the order passed by the State
Government declining to accept the prayer for voluntary
retirement.
A Special Leave Petition was preferred in this Court
against the decision dated 22.08.2014 rendered by the High
Court. However, it was withdrawn on the ground that there
were certain errors apparent on the face of the record of
the order passed by the High Court and as such the
petitioner wanted to file a review petition. Permission
was granted to withdraw the Special Leave Petition with
liberty to file a review petition.
Thereafter, pursuant to the aforesaid order, review
petition R.V.W. No.18/2015 in WPST No.208 of 2014 was
filed in the High Court. The same has been allowed by the
impugned judgment and order dated 20.01.2017 in R.V.W.
No.18/2015 and the decision in Writ Petition No.208/2014
has been reversed. Same has been questioned by the State
of West Bengal in the appeal.
The Division Bench while allowing the review
petition has observed that on a proper interpretation,
Note 3 of Rule 75 could not have been rationally or
logically applied in respect of sub-Rule (aaa) of Rule 75
of the Rules. There was an error apparent on the face of
the record in the judgment and order dated 22.08.2014 as
such the same was required to be interfered with. Hence
review has been allowed and the order passed by the
Tribunal has been restored.
Shri Anand Grover, learned Senior counsel on behalf
of the appellant(s) has submitted that it was not proper
for the Division Bench to review the previous judgment and
order as no ground within the parameters of review
jurisdiction was available. Apart from that, the
interpretation put upon Rule 75 (aaa) of the Rules is not
correct and the case is clearly covered by the decision of
this Court in State of Uttar Pradesh v. Achal Singh - 2018
(10) scale 89.
On the other hand, Mr. S.B. Upadhyay, learned Senior
counsel appearing on behalf of the respondent has
supported the judgment and order passed by the High Court
and contended that Note 3 was in fact not inserted vide
order dated 23.06.1973 as mentioned in the notification
dated 15.08.1971, there is a wrong reference to the
insertion to the Note 3 of Rule 75(aaa) vide notification
of 23.06.1973. He submitted that the concept of public
interest is not germane in the case of voluntary
retirement. Note 3 is attracted only in the case of
retirement ordered in the public interest under Rule 75
(aa) of the Rules. Thus, no case for inference with the
impugned judgment and order of the High Court is made out.
We are constrained to observe that merely on
entertaining a different view on the interpretation of
Rule 75, it was not open to the Division Bench to review
previous judgment and order passed by a different Division
Bench of the High Court on 22.08.2014. A fundamental
jurisdictional error has been committed by the Division
Bench of the High Court while setting aside the order
dated 22.08.2014. It has acted as if it was exercising
appellate power while exercising the review jurisdiction.
There was no such error apparent on the face of the record
in the previous judgment and order dated 22.08.2014
warranting review by the different bench of the High
Court. No doubt, there was a change in the composition of
the Division Bench. The judgment and order passed by
earlier Bench was required to be equally respected and not
to be readily interfered with, until and unless there is
an apparent error on the face of the record. Merely by
entertaining a different view as to the interpretation of
a particular provision, a judgment cannot be reviewed.
The Division Bench which earlier decided the matter
had laboured hard to interpret Rule 75 by analyzing it
more effectively and rightly than done while reviewing the
order. We are of the opinion that the Division Bench
ought not to have reviewed the judgment and order at all
as no ground was available within the parameters of review
jurisdiction. No ground had been raised even in the review
application to constitute an error apparent on the face of
record much less reflected in the impugned order passed in
the review so as to set aside the previous judgment and
order.
Apart from that, yet another jurisdictional error
has been committed. Once the Court had found that there
was sufficient reason for reviewing the order, only review
petition should have been decided, after the recall of the
order it ought to have heard the main matter afresh. That
has not been done. By the same impugned order, the
previous judgment and order have been set aside and the
main case has also been disposed of without hearing it
again separately. Thus, the proper procedure has not been
followed.
When we come to the merits of the case, from the
interpretation of Rule 75, it is apparent that it deals
with retirement on attaining the age of superannuation in
the public interest, and voluntary retirement. Rule 75 is
extracted herein:
“75 (a) Except as otherwise provided in these rules, a
Government employee other than a member of the Group D
service shall retire from service compulsorily with
effect from the afternoon of the last day of the month in which he attains the age of fifty-eight years;
provided that a Government employee other than a member of the Group D service whose date of birth is the first of a month shall retire from service with effect from the afternoon of tin; last day of the preceding month of attaining the age of fifty-eight years;
provide further that the age-limit for retirement as prescribed in this rule shall not be applicable in cases where higher age limit up to 60 years for retirement has been fixed under any general or special orders of Government.
Note-In cases where the Matriculation certificate does not show the actual date of birth and instead shows the age of the candidate as on the 1st March of the years in which the examination was held in terms of years and months only excluding days, Government may alter the date of birth recorded in the Service Book, to correspond to the actual date of birth, if the Government employee concerned is able to produce acceptable documentary evidence in the form of an extract from Birth Register or Admission Register of the institution concerned etc. In support of the actual date of birth claimed by him, and a decision to retire him shall be taken on the basis of such altered date of birth. Where, however, the date of birth of a Government employee has been recorded as the first day of a month on the basis of Matriculation certificate showing the age as on the 1st March of the year in which the examination was held in terms of years and months only and where it is not possible to ascertain the exact date of birth on the basis of any acceptable documentary evidence like extract from the Birth Register or Admission Register of the institution concerned etc., it shall be presumed that the actual date of birth of the Government employee was a day other than the first date of the month and he may be allowed to retire on the last day of the same month instead of the last…of the previous month,”
75(aa) Notwithstanding anything contained in the rule, the appointing authority shall, if it is of opinion that it is in the public interest so to do, have the absolute right to retire any Government employee by giving him notice of not less than 3 months in writing or 3 months’ pay and allowances in lieu of such notice.
(i) if he is in Group A or Group B (erstwhile gazetted) service or post and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years; and (ii) in all other
cases, after he has attained the age of 55 years.
Note-(i) if on a review of the case either on a representation from the Government employee retired prematurely or otherwise, it is decided to reinstate the Government employee in service, the authority ordering reinstatement may regulate the intervening period between the date of premature retirement and the date of reinstatement by the grant of leave or, by treating it as dies non depending upon the facts an circumstances of the case;
Provided that the intervening period shall be treated as a period spent on duty for all purposes including pay and allowances, if it is specifically held by the authority ordering reinstatement that the premature retirement was itself not justified in the circumstances of the case, or if the order of premature retirement is set aside by the Court of law.
(ii) Where the order of premature retirement is set aside by a Court of law with specific directions in regard to regulation of the period between the date of premature retirement and the date of reinstatement and no further appeal is proposed to be filed, the aforesaid period shall be regulated in accordance with the directions of the court.
75(aaa)Any government employee may, by giving notice of not less than 3 months in writing to the appointing authority, retire from Government service after he has attained the age of 50 years, if he is in Group A or Group B (erstwhile gazetted) service or post, and had entered Government service before attaining the age of 35 years; and in all other cases, after he has attained the age of 55 years, provided that it shall be open to the appointing authority to withhold permission to a Government employee under suspension who seeks to retire under this sub-rule.
Note 1 - In computing the three months notice period referred to in sub-rule(aa) and (aaa) the date of service of the notice and the date of its expiry shall be excluded.
Note 2 - The 3 months' notice referred to in sub-rule (aa) or sub-rule (aaa) above, may be given before the Government employee attains the age specified in the said sub-rules, provided that the retirement takes place after the Government employee, has attained the specified age.
Note 3 - The appointing authority should invariably
keep on record that in his opinion it is necessary to
retire the Government employee in pursuance of the
aforesaid rule in public interest.
Rule 75(a) deals with the retirement on attaining
the age of superannuation. The expression “compulsory”
retirement has been wrongly used in the said provision.
What is meant by compulsory retirement probably is that no
one to continue in service after attaining the age of 58
years. The retirement on attaining the age of
superannuation is not a concept of compulsory retirement
as understood in the service jurisprudence. Be that as it
may, the State may be well advised to amend the rule.
Rule 75 (aa) deals with retirement in public
interest. As a matter of fact, the concept of compulsory
retirement is the one which is to be found in Rule 75
(aa). It provides that there is an absolute right with the
State Government in the public interest to retire a person
by giving a notice of not less than 3 months in writing or
3 months’ pay and allowances in lieu of such notice.
When we come to Rule 75 (aaa) of the Rules, it is
apparent that the same deals with the voluntary retirement
of a government employee. Any Government employee by
giving notice of not less than 3 months in writing or 3
months’ pay and allowances in lieu of such notice, to the
appointing authority, may retire from government service
after he has attained the age of 50 years, if he is in
Group A or Group B (erstwhile gazette) service or post and
had entered Government service before attaining the age of
35 years, and in all other cases, after he has attained
the age of 55 years, provided that it shall be open to the
appointing authority to withhold permission to a
government employee under suspension who seeks to retire
under this sub-rule.
Note 1 to Rule 75 (aaa) provides that in computing
the three months notice period referred to in Rule 75 (a)
and (aaa) date of service of the notice and date of expiry
shall be excluded.
Note 2 specifically deals with three months notice
referred in Rule (aa) and sub-rule (aaa) that it may be
given before the government employee attains the age
specified in the said sub-rules provided that the
retirement takes place after the Government employee has
attained the specified age.
However, Note 3 which is relevant is not confined in
operation to sub-rule (aaa) of Rule 75. It is clearly
provided in Note 3 that the appointing authority should
invariably keep on record that in his opinion it is
necessary to retire the Government employee in pursuance
of the aforesaid rule in public interest. Obviously, the
Note 3 is applicable to both Rule 75 (aa) and 75 (aaa) as
was rightly opined by the Division Bench while rendering
the judgment and order dated 22.08.2014.
The question is no more res integra. It has been
considered by this Court in Achal Singh (supra), in which
the following observations have been made:
“33. The concept of liberty not to serve when the
public interest requires cannot be attracted as
retirement which carries pecuniary benefits can be
subject to certain riders. The general public has
the right to obtain treatment from super skilled
specialists, not second rates. In Jagadish Saran
v. Union of India (1980)2 SCC 768, the Court
observed thus:
"44. Secondly, and more importantly, it is
difficult to denounce or renounce the merit
criterion when the selection is for
postgraduate or postdoctoral courses in
specialized subjects…...To sympathize mawkishly
with the weaker sections by selecting
substandard candidates is to punish society as
a whole by denying the prospect of excellence
say in hospital service. Even the poorest,
when stricken by critical illness, needs the
attention of super skilled specialist, not
humdrum second rates. So it is that relaxation
on merit, by overruling equality and quality
altogether, is a social risk where the stage is
postgraduate or postdoctoral.
34. The concept of public interest can also be
invoked by the Government when voluntary retirement
sought by an employee, would be against the public
interest. The provisions cannot be said to be
violative of any of the rights. There is already a
paucity of the doctors as observed by the High
Court, the system cannot be left without competent
senior persons and particularly, the High Court has
itself observed that doctors are not being
attracted to join services and there is an existing
scarcity of the doctors. Poorest of the poor
obtain treatment at the Government hospitals. They
cannot be put at the peril, even when certain
doctors are posted against the administrative
posts. It is not that they have been posted
against their seniority or to the other cadre.
Somebody has to man these administrative posts
also, which are absolutely necessary to run the
medical services which are part and parcel of the
right to life itself. In the instant case, where
the right of the public is involved in obtaining
treatment, the State Government has taken a
decision as per Explanations to decline the prayer
for voluntary retirement considering the public
interest. It cannot be said that State has
committed any illegality or its decision suffers
from any vice of arbitrariness.
35. The decision of the Government caters to the
needs of human life and carry the objectives of
public interest. The respondents are claiming the
right to retire under Part III of the Constitution
such right cannot be supreme than right to life.
It has to be interpreted along with the rights of
the State Government in Part IV of the Constitution
as it is obligatory upon the State Government to
make an endeavour under Article 47 to look after
the provisions for health and nutrition. The
fundamental duties itself are enshrined under
Article 51(A) which require observance. The right
under Article 19(1) (g) is subject to the interest
of the general public and once service has been
joined, the right can only be exercised as per
rules and not otherwise. Such conditions of
service made in public interest cannot be said to
be illegal or arbitrary or taking away the right of
liberty. The provisions of the rule in question
cannot be said to be against the constitutional
provisions. In case of voluntary retirement,
gratuity, pensions, and other dues etc. are payable
to the employee in accordance with rules and when
there is a requirement of the services of an
employee, the appointing authority may exercise its
right not to accept the prayer for voluntary
retirement. In case all the doctors are permitted
to retire, in that situation, there would be a
chaos and no doctor would be left in the Government
hospitals, which would be against the concept of
the welfare state and injurious to public interest.
In the case of voluntary retirement, there is
provision in Rule 56 that a Government servant may
be extended benefit of additional period of five
years then an actual period of service rendered by
him there is the corresponding obligation to serve
in dire need."
In view of the aforesaid discussion, we are of the
considered opinion that in the previous judgment and order
passed by the Division Bench on 22.08.2014 had taken a
correct view on merits and was illegally interfered with
while exceeding the jurisdiction by the subsequent
Division Bench while reviewing it and dismissing the Writ
Petition being WPST No.208 of 2014 by the impugned
judgment and order dated 20.01.2017.
The respondent is directed to report back to the
duty within one month from today. He will not be entitled
to the wages for the period he has not served and that
would also not be counted towards the period of service
for the purpose of retiral benefits.
The impugned order dated 20.01.2017 is set aside and
the judgment and order dated 22.08.2014 is hereby
restored. The appeal is allowed. No costs.
Petition(s) for Special Leave to Appeal (C) No(s). 28608/2018
(Arising out of impugned final judgment and order dated 20-01-2017 in RVW No. 18/2015 passed by the High Court At Calcutta)
STATE OF WEST BENGAL & ORS. Petitioner(s)
DR. TONMOY MONDAL Respondent(s) IA NO.168020/2018-PERMISSION TO FILE ADDL. DOCUMENTS/FACTS IA NO.168023/2018- APPLN. FOR VACATING STAY
Date : 12-03-2019 This matter was called on for hearing today.
CORAM :
For Petitioner(s) Mr. Anand Grover, Sr. Adv.
Mr. Suhaan Mukerji, Adv.
Ms. Astha Sharma, Adv.
Mr. Abhishek Manchanda, Adv.
Mr. Amit Verma, Adv.
Ms. Dimple Nagpal, Adv.
M/S. Plr Chambers And Co., AOR
For Respondent(s) Mr. S.B. Upadhyay, Sr. Adv.
Mr. Konark Tyagi, AOR
Mr. Deepayan Mondal, Adv.
Mr. Rahul Shyam Bhandari, Adv.
UPON hearing the counsel the Court made the following
Leave granted.
The appeal is allowed in terms of the signed reportable order.
Pending applications stand disposed of.
[signed reportable order is placed on the file]