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REPORTABLE

SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 8421 Of 2018

(Arising out of S.L.P. (Civil) No.12601 of 2018)

STATE OF UTTAR PRADESH & ORS. ..APPELLANTS

VERSUS

ACHAL SINGH ..RESPONDENT

WITH

Civil Appeal No. 8422 of 2018

(Arising out of S.L.P. (Civil) No.18737 of 2018)

Civil Appeal No. 8423 of 2018

(Arising out of S.L.P. (Civil) No.18739 of 2018)

AND

Civil Appeal No. 8424 of 2018

(Arising out of S.L.P. (Civil) No.18741 of 2018)

JUDGMENT

Signature Not Verified

ARUN MISHRA, J.
Digitally signed by
NEELAM GULATI
Date: 2018.08.21
14:53:37 IST
Reason:

1. Leave granted.
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2. The State of Uttar Pradesh in the appeals is aggrieved by

common judgment and order dated 29.11.2017 passed by the Division

Bench of the High Court of Allahabad, allowing the writ petitions filed

by the respondents herein seeking voluntary retirement from the

Government services. Directions were issued to treat the respondents

to have retired from Government services with effect from 30.11.2017

and 31.12.2017.

3. The main question for consideration before us is as to whether

under Rule 56 of the Uttar Pradesh Fundamental Rules (hereinafter

referred to as the “Fundamental Rules”) as amended, an employee has

unfettered right to seek voluntary retirement by serving a notice of

three months to the State Government or whether the State

Government under the Explanation attached to Rule 56 of the

Fundamental Rules, is authorised to decline the prayer for voluntary

retirement in the public interest under clause (c) of Rule 56 of the

Fundamental Rules as applicable to the State of Uttar Pradesh.

4. The respondent - Dr. Achal Singh was working as Joint Director

in Medical, Health and Family Welfare, Lucknow Region, Lucknow

filed an application dated 14.12.2016 for voluntary retirement w.e.f.

31.3.2017. Respondent – Dr. Ajay Kumar Tiwari was holding the post

of Joint Director, Medical, Health and Family Welfare, Devi Patan

Mandal, Gonda, filed an application on 28.2.2017 seeking voluntary

retirement w.e.f. 31.5.2017. Respondent - Dr. Rajendra Kumar

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Srivastava was working as Senior Consultant, filed an application for

voluntary retirement on 15.4.2015 and respondent - Dr. Rajiv

Chaudhary was working as Senior Consultant at District Hospital,

Raibareli, he sought voluntary retirement by filing an application on

3.12.2016. The applications remained unattended and no order had

been communicated, hence writ petitions were filed in the High Court.

The respondents-doctors were members of the Provincial Medical

Services.

5. The High Court in the impugned judgment and order has

observed that it is the responsibility of the authorities to monitor the

health system in the State and they have to sincerely examine the

issues as to how the working of the Government hospitals can be

improved for the betterment of the general public and find out why

doctors are opting for voluntary retirement every day. The High Court

also observed that the doctors are not interested in joining the

Government service when fresh recruitments take place. The High

Court has also noted that posts of Medical Officers are not being filled

up on account of non-availability of candidates. The High Court has

further noted that those who have entered into Government service

are continuously opting for voluntary retirement from service causing

serious scarcity of doctors in Government hospitals and Primary

Health Centres.
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6. The High Court in the impugned judgment has also referred to

the report of the MCI and the existing proportion of one doctor per

2000 population. In fact, the number of doctors is much smaller

than the number given in the MCI report. The High Court also

observed that the doctors are being posted, in spite of scarcity, on the

administrative posts that causes wastage of specialised talent. The

High Court has also observed that the authorities must provide

adequate infrastructure, working equipment, and a proper working

environment. The hospitals should be made excellent centres of health

care. It should be the object of the State Government to provide

doctors with good opportunities so as to retain them in services. At

the same time, the High Court has also observed that in order to

enhance the better medical facilities to the poor and needy people, it

would be appropriate to maintain a balance between the senior and

junior doctors in each Primary Health Centres in rural and urban

areas. There is a need to provide continuing medical education to

doctors and to hold conferences and seminars to exchange the latest

views/opinions/knowledge etc. and their performance in such events

should also be considered for promotion etc. At the same time, the

High Court has allowed the writ petitions and treated the doctors to

have retired voluntarily on the dates specified. Aggrieved thereby, the

State has come up in these appeals.

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7. It was urged by Mr. P.N. Mishra, learned senior counsel

appeared on behalf of appellant that as per Explanation attached to

Rule 56 of the Fundamental Rules as amended in the State of Uttar

Pradesh, it was open to the State Government to take a decision

whether to retire an employee voluntarily under Rule 56(a) duly

considering the public interest or decline the applications for

voluntary retirement. It was also submitted that there is no automatic

retirement on the expiry of the period of notice of three months served

under Rule 56 as applicable in the State of Uttar Pradesh. There has

to be an express order granting permission to retire voluntarily, only

thereafter an employee can be said to have retired voluntarily. There

is a scarcity of doctors in the Provincial Health Services in the State of

Uttar Pradesh, thus, the State Government has not accepted the

applications for voluntary retirement. The directions issued by the

High Court is based on a misinterpretation of Rule 56 of the

Fundamental Rules and is against the public interest.

8. It was contended by learned senior counsel appearing on behalf

of the appellants that in the case of Dr. Achal Singh, the State

Government has passed the order on 31.5.2017. The prayer for

voluntary retirement was rejected on the ground of lack of specialised

doctors and in public interest and the notice seeking voluntary

retirement under Rule 56 was rejected and in other cases, the

applications were kept pending. They further contended that Rule 56

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contemplates a notice and not a request for voluntary retirement. An

employee is not required to give reason while giving a notice for

voluntary retirement and in any such event, such reasons are not

justiciable. It is a prerogative of the employee to seek voluntary

retirement. The right of the employee to retire voluntarily corresponds

with the right of the State Government to retire him in the case of

deficiency in services. As held in Dinesh Chandra Sangma vs. State of

Assam, (1977) 4 SCC 441, the rule provides right to retire and not to

seek it. The acceptance of the appointing authority is required only

when the disciplinary enquiry is pending and its pendency has been

communicated to the employee. Once notice of three months is given,

the doctor is deemed to have retired and any action of attempting to

reject the notice of voluntary retirement after the said date is

ineffective in law. The decision has to be taken within a period of

three months, otherwise, the employee is automatically deemed to

have retired on the lapse of three months’ period. It was contended

that the court not to interfere with the principle of certainty of rule of

law may be applied and long-standing precedent of Dinesh Chandra

Sangma (supra) may not be dislodged and be applied to the cases at

hand. The only condition of voluntary retirement is fulfilled after

completion of 20 years of service and if it is allowed, it does not affect

the availability of doctors. The State has not taken care to recruit the

doctors. It is not permissible to withhold the order of voluntary

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retirement. In case this Court does not agree with the decision

rendered in Dinesh Chandra Sangma (supra), the matter may be

referred to a larger Bench. The view taken by the High Court in the

impugned judgment and order may be affirmed with the rider of an

imposition of the moratorium to balance the equities.

9. In order to appreciate the rival submissions, it is necessary to

consider 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, every

Government servant other than a Government servant in
inferior service shall retire from service on the afternoon of the
last day of the month in which he attains the age of fifty eight
years. He may be retained in service after the date of
compulsory retirement with the sanction of the Government on
public grounds which must be recorded in writing, but he
must not be retained after the age of 60 years 1 except in very
special circumstances.

(b) A Government servant in inferior service shall retire from

service on the afternoon of the last day of the month in which
he attains the age of sixty years. He must not be retained in
service after that date, except in very special circumstances
and with sanction of the Government.

(c) Notwithstanding anything contained in clause (a) or clause

(b), the appointing authority may, at any time by notice to any
Government servant (whether permanent or temporary),
without assigning any reason, require him to retire after he
attains the age of fifty years or such Government servant may
by notice to the appointing authority voluntarily retire at any
time after attaining the age of forty-five years or after he has
completed qualifying service of twenty years.

1 In the Medical, Health and Family Welfare Department in State Medical and Health
Services, the retirement age of Medical Officers in public interest has been approved as 62
years in place of 60 years with certain conditions vide Notification No.2324/SEC-2-5-2017-
7(237)/2014 dated 31.5.2017.
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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
appointing authority, without such notice or by a shorter
notice, be retired forthwith at any time after attaining the age
of fifty years, and on such retirement the Government servant
shall be entitled to 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 the period by which such notice falls
short of three months, at the same rates at which he was
drawing immediately before this retirement;

(ii) it shall be open to the appointing authority to allow a

Government servant to retire without any notice or by a
shorter notice without requiring the Government servant to
pay any penalty in lieu of notice:

Provided further that such notice given by the Government

servant against whom a disciplinary proceeding is pending or
contemplated, shall be effective only if it is accepted by the
appointing authority, provided that in the case of a
contemplated disciplinary proceeding the Government servant
shall be informed before the expiry of his notice that it has not
been accepted:

Provided also that the notice once given by a Government

servant under clause (c) seeking voluntary retirement shall not
be withdrawn by him except with the permission of the
appointing authority.

(e) A retiring pension shall be payable and other retirement

benefits, if any, shall be available in accordance with and
subject to the provisions of the relevant Rules to every
Government servant who retires or is required or allowed to
retire under this rule.

Provided that where a Government servant who voluntarily

retires or is allowed voluntarily to retire under this rule the
appointing authority may allow him, for the purposes of
pension and gratuity, if any, the benefit of additional service of
five years or of such period as he would have served if he had
continued till the ordinary date of his superannuation,
whichever be less;

Explanation.- (1) The decision of the appointing authority

under clause (c) to require the Government servant to retire as
specified therein shall be taken if it appears to the said
authority to be in public interest, but nothing herein contained
shall be construed to require any recital, in the order, of such
decision having been taken in the public interest.

(2) In order to be satisfied whether it will be in the public

interest to require a Government servant to retire under clause
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(c), the appointing authority may take into consideration any

material relating to the Government servant and nothing
herein contained shall be construed to exclude from
consideration –

(a) any entries relating to any period before such Government

servant was allowed to cross any efficiency bar or before he
was promoted to any post in an officiating or substantive
capacity or on an ad hoc basis; or
(b) any entry against which a representation is pending,
provided that the representation is also taken into
consideration along with the entry; or
(c) any report of the Vigilance Establishment constituted
under the Uttar Pradesh Vigilance Establishment Act,
1965.

(2A) Every such decision shall be deemed to have been taken

in the public interest.

(3) The expression appointing authority means the authority

which for the time being has the power to make substantive
appointments to the post or service from which the
Government servant is required or wants to retire; and the
expression ‘qualifying service' shall have the same meaning as
in the relevant Rules relating to retiring pension.

(4) Every order of the appointing authority requiring a

Government servant to retire forthwith under the first proviso
to clause (d) of this rule shall have effect from the afternoon of
the date of its issue, provided that if after the date of its issue,
the Government servant concerned, bona fide and in ignorance
of that order, performs the duties of his office his acts shall be
deemed to be valid notwithstanding the fact of his having
earlier retired.”

Reading of the aforesaid rule makes it clear that an employee

can be retired by the Government after he attains the age of 50 years

or Government servant may voluntarily retire at any time after

attaining the age of 45 years or after he has completed qualifying

service of 20 years under Rule 56(c). It is provided in the Rule 56 that

Government may retire a Government servant without any notice or by

serving a shorter notice and on such retirement, the Government

servant shall be entitled to claim a sum equivalent to the amount of

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his pay plus allowances, if any, for the period of notice or for the

period it falls short of three months at the same rates at which he was

drawing immediately before his retirement. It is also open to the

Government to allow a Government servant to retire without any

notice or by a shorter notice without requiring 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 the Government servant against

whom a disciplinary proceeding is pending or contemplated, shall be

effective only if it is accepted by the appointing authority and provided

that in case of a contemplated disciplinary proceeding, the

Government servant shall be informed before the expiry of the notice

that it has not been accepted. It is also provided that once a notice is

given by a Government servant seeking voluntary retirement shall not

be withdrawn by him except with the permission of the appointing

authority.

Rule 56(e) provides that pension and other retiral benefits shall

be available to every Government servant, who retires or is required or

allowed to retire under the rule. Proviso to Rule 56(e) provides that

appointing authority at its discretion may allow benefits of additional

service of 5 years to such employees who voluntarily retires or is

allowed voluntarily to retire under the rule for the purposes of pension

and gratuity or of such period as he would have served if he had

continued till the ordinary date of his superannuation.

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10. The explanation attached to Rule 56 makes it clear that the

decision of the appointing authority under clause (c) of Rule 56 to

retire a Government servant shall be taken if it appears to be in public

interest. The explanation is applicable to both the exigencies viz.,

when Government retires an employee or when an employee seeks

voluntary retirement, not only when Government desires to retire an

employee in public interest. The Explanation attached to Rule 56 as

applicable in the State of Uttar Pradesh is clear and precise.

11. In our opinion, whether voluntary retirement is automatic or an

order is required to be passed would depend upon the phraseology

used in a particular rule under which retirement is to be ordered or

voluntary retirement is sought. The factual position of each and every

case has to be seen along with applicable rules while applying a

dictum of the Court interpreting any other rule it should be Pari

Materia. Rule 56(2) deals with the satisfaction of the Government to

require a Government servant to retire in the public interest. For the

purpose, the Government may consider any material relating to

Government servant and may requisition any report from the Vigilance

Establishment.

12. The respondents have relied on dictum in Dinesh Chandra

Sangma vs. State of Assam, (1977) 4 SCC 441, a three-Judge Bench of

this Court observed as under:

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

amended:

F.R.56(a) The date of compulsory retirement of a

Government servant is the date on which he
attains the age of 55 years. He may be retained in
service after this age with sanction of the State
Government on public grounds which must be
recorded in writing and proposals for the
retention of a Government servant in service after
this age should not be made except in very
special circumstances.

(b) Notwithstanding anything contained in these

rules the appropriate authority may, if he is of
the opinion that it is in the public interest to do
so, retire Government servant by giving him
notice of not less than three months in writing or
three months' pay and allowances in lieu of such
notice, after he has attained fifty years of age or
has completed 25 years of service, whichever is
earlier.

(c) Any Government servant may, by giving notice

of not less than three months in writing to the
appropriate authority, retire from service after he
has attained the age of fifty years or has
completed 25 years of service, whichever is
earlier.

It is clear from the above that under F. R. 56(b) the

Government may retire a Government servant in the public
interest by giving him three months' notice in writing or three
months' pay and allowances in lieu thereof after he has
attained the age of fifty years or has completed 25 years of
service, whichever is earlier.

8. As is well-known Government servants hold office during

the pleasure of the President or the Governor, as the case may
be, under Article 310 of the Constitution. However, the
pleasure doctrine under Article 310 is limited by Article 311(2).
It is clear that the services of a permanent Government servant
cannot be terminated except in accordance with the rules
made under Article 309 subject to Article 311(2) of the
Constitution and the Fundamental Rights. It is also well-
settled that even a temporary Government servant or a
probationer cannot be dismissed or removed or reduced in
rank except in accordance with Article 311(2). The above
doctrine of pleasure is invoked by the Government in the
public interest after a Government servant attains the age of
50 years or has completed 25 years of service. This is
constitutionally permissible as compulsory termination of
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service under F.R. 56 (b) does not amount to removal or

dismissal by way of punishment. While the Government
reserves its right to compulsorily retire a Government servant,
even against his wish, there is a corresponding right of the
Government servant under F. R. 56(c) to voluntarily retire from
service by giving the Government three months' notice in
writing. There is no question of acceptance of the request for
voluntary retirement by the Government when the Government
servant exercises his right under F. R. 56(c). Mr. Niren De is
therefore right in conceding this position.

*** *** ***

13. F.R. 56 is one of the statutory rules which binds the

Government as well as the Government servant. The condition
of service which is envisaged in Rule 56(c) giving an option in
absolute terms to a Government servant to voluntarily retire
with three months' previous notice, after he reaches 50 years
of age or has completed 25 years of service, cannot therefore
be equated with a contract of employment as envisaged in
Explanation 2 to Rule 119.

14. The field occupied by F. R. 56 is left untrammelled by

Explanation 2 to Rule 119. The words "his contract of
employment" in Explanation 2 are clinching on the point.

*** *** ***

17. The High Court committed an error on law in holding that

consent of the Government was necessary to give legal effect to
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 by him with effect from August 2, 1976.

13. It was submitted that despite the absence of any identical

language, the rule involved in Dinesh Chandra Sangma (supra) is

comparable with Uttar Pradesh Fundamental Rules and therefore, the

judgment is binding. The submission based upon the same cannot be

accepted and Rule 56(b)(c) came up for consideration was somewhat

different and there was no such Explanation to Rule 56.

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14. In Dinesh Chandra Sangma (supra) he was the District and

Sessions Judge at Dibrugarh in the State of Assam. On account of

domestic troubles, he did not want to continue after attainment of the

age of 50 years. He served a notice under Rule 56(c) as amended by

the Governor of Assam under Article 309 of the Constitution by

notification dated 22.7.1975. The formal notice was served upon by

him. The Government allowed him to retire from the State

Government Service and then there were certain developments in the

Government and Government sought to retrace its steps and passed

an order on 28.7.1976, countermanding its earlier order allowing him

to retire from service. The High Court dismissed the writ application

filed by him. The Fundamental Rule as applicable in the State of

Assam came up for consideration. In our opinion, it was quite

different. It is provided in the Fundamental Rule 56(b) as applicable

in the State of Assam that public interest was germane when a

Government servant retires. Under Rule 56(c), a Government servant

may retire by giving notice of not less than three months. Hence it

was observed that there was no question of acceptance of the request

for voluntary retirement by the Government when the Government

servant exercises his right under Rule 56(c). Not only 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 it

completely different and the provisions in F.R.56(c) is also quite

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different. The rules as applicable in Assam for the purpose of

retirement by the Government is contained in F.R.56(b) which require

retirement in public interest whereas no such rider exist in F.R.56(c)

when employee seek voluntary retirement, whereas rule in the State of

Uttar Pradesh both provisions are conjointly read not only the

language is different and the explanation makes out the whole

difference.

15. The Explanation attached to Rule 56 as applicable in the State of

Uttar Pradesh makes it clear that when a decision is taken by the

authority under clause (c) of Rule 56, the right of an employee to retire

cannot be said to be absolute as in the case of resignation, voluntary

retirement is with retiral benefits whereas it may not necessarily follow

in case of resignation. The decision under the rules in U.P. is to be

based upon considering the public interest, whether it is a case of

retirement by the Government or a case of a Government servant

seeking voluntary retirement. The decision rendered in Dinesh

Chandra Sangma (supra) is distinguishable and was based on the

differently couched rule. The Explanation added makes the provisions

different in the State of Uttar Pradesh. The decision in the case of

Dinesh Chandra Sangma (supra) cannot be said to be operative being

quite distinguishable.
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16. Reliance has also been placed by the learned counsel for the

respondents 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 for
the retirement of Government servants before attaining the age
of 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 is in the public interest so to do,
have the absolute right to retire any Government
servant to whom clause (a) applies by giving him
notice of not less than three months in writing or
three months’ pay and allowances in lieu of such
notice:

* * * * *

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

Any Government servant to whom clause (a)

applies may, by giving notice of not less than
three months in writing to the Appointing
Authority, retire from service … and in any other
case, 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 less than 3 months after he has attained the age of 55
years. Under Rule 161(1)(aa)(1) the appointing authority has
an absolute right to retire any Government servant to whom
clause (a) applies in public interest by giving him notice of not
less than three months in writing or three months’ pay and
allowances in lieu of such notice. But the Government servant
has no such absolute right. A right is conferred on the
Government servant under Rule 161(2)(ii) to retire by giving
not less than three months’ notice on his attaining the
prescribed age. Such a right is subject to the proviso which is
incorporated to the sub-section which reads as
follows:

Provided that it shall be open to the appointing

authority to withhold permission to retire to a
Government servant who is under suspension, or
against whom departmental proceedings are
pending or contemplated, and who seeks to retire
under this sub-clause.
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But for the proviso, a Government servant would be at liberty

to' retire by giving not less than three months’ notice in writing
to the appointing authority on attaining the prescribed age.
This position has been made clear by this Court in Dinesh
Chandra Sangma v. State of Assam, (1977) 4 SCC 441, where
the Court was considering the effect of the (Assam)
Fundamental Rule 56(c) which confers right on the
Government servant to voluntary retire. Rule 56(c) of the
(Assam) Fundamental Rules runs as follows :

(c) Any Government servant may, by giving

notice of not less than three months in writing
to the appropriate authority, retire from service
after he has attained the age of fifty years or has
completed 25 years of service, whichever is
earlier.

On a construction of the Rule this Court held that the

condition of service which is envisaged in Rule 56(c) giving an
option in absolute terms to a Government servant to
voluntarily retire with three months' previous notice, after he
reaches 50 years of age or has completed 25 years of service,
cannot be equated with a contract of employment as envisaged
in Explanation 2 to Rule 119 of the Defence of India Rules and
that Rule 56 is a statutory condition which operated in law
without reference to a contract of employment and when once
the conditions of Fundamental Rule 56(c) are fulfilled the
Government servant must be held to have lawfully retired. But
for the proviso to Rule 161(2)(ii), the decision of this Court in
the case cited above would be applicable and the right would
have been absolute. But the proviso has restricted the right
conferred on the Government servant. Under the proviso it is
open to the appointing authority to withhold permission to
retire to a Government servant when (1) he is under
suspension, or (2) against whom departmental proceedings are
pending or contemplated. Thus the permission to retire can be
withheld by the appointing authority either when the
Government servant is under suspension or against whom
departmental proceedings are pending or contemplated. It was
submitted on behalf of the appellant that admittedly he was
not under suspension on the date when he attained the age of
55 years and that no departmental proceedings were pending
or contemplated against him as required under the proviso. No
departmental proceeding was pending but on the facts one
cannot say that a proceeding was not under contemplation.

*** *** ***

9. Mr. Patel next referred us to the meaning of the word

"withhold" in Webster's Third New International Dictionary
which is given as "hold back" and submitted that the
permission should be deemed to have been withheld if it is not
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communicated. We are not able to read the meaning of the

word "withhold" as indicating that in the absence of a
communication it must be understood 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 servant in public interest by giving him a notice of not

less than three months or three months’ pay and allowances in lieu

thereof. Rule 161(2)(ii) did not employ the word public interest when

the Government servant seeks voluntary retirement. This has been

added to the Rule applicable in the State of Uttar Pradesh. Neither

there is any provision in the aforesaid rules that require to pass an

order to decide an application by a Government servant seeking

voluntary retirement that too considering the public interest. Under

the rules, it was open to the appointing authority to withhold the

permission to retire a Government servant who is under suspension or

against whom the departmental enquiry was pending or contemplated.

The rules considered by this Court in B.J. Shelat (supra) were different

and did not contain the provision like Explanation as incorporated in

the Fundamental Rule 56 as applicable in the State of Uttar Pradesh.

In that context, the discussion has been made and cannot be applied

to a rule differently couched in U.P.

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17. Reliance was also placed on the decision rendered by this Court

in State of Bombay vs. United Motors, AIR 1953 SC 252 and Bengal

Immunity vs. State of Bihar, AIR 1955 SC 661, in which it has been

observed that Explanation can be read as proviso and it explain the

scope of the main provision and the Explanation becomes part of the

main section. There is no dispute with the aforesaid proposition. The

Explanation in rules in question has to be applied to both the

situations as contemplated in Rule 56(c) and is applicable to both the

exigencies not only when Government decides to retire an employee,

but also applicable where voluntary retirement is sought by an

employee. It cannot be said that no further restriction by explanation

has been added in a case where an employee has decided to obtain

voluntary retirement. The public interest is the prime consideration

on which authority has to decide such a 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 are

squarely applicable in the present case. Reliance has been placed on

the 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 Rules

and observed thus:

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

“Rule 5.32(B)(1) At any time a government

employee has completed twenty years’ qualifying
service, he may, by giving notice of not less than
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three months in writing to the appointing

authority retire from service. However, a
government employee may make a request in
writing to the appointing authority to accept
notice of less than three months giving reason
therefor. On receipt of a request, the appointing
authority may consider such request for the
curtailment of the period of notice of three
months on merits and if it is satisfied that the
curtailment of the period of notice will not cause
any administrative inconvenience, the appointing
authority may relax the requirement of notice of
three months on the condition that the
government employee shall not apply for
commutation of a part of his pension before the
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 to Rule 2.2, of
Punjab Civil Services Rules Vol.II :

Provided that where the appointing authority

does not refuse to grant the permission for
retirement before the expiry of the period
specified in sub-rule (1) supra, the retirement
shall become effective from the date of expiry of
the said period:

Provided further that before a government

employee gives notice of voluntary retirement
with reference to sub-rule (1) he should satisfy
himself by means of a reference to the
appropriate authority that he has, in fact,
completed twenty years’ service qualifying for
pension.”

*** *** ***

8. It will be noticed that under Rule 5.32(B), a government

employee who has completed 20 years of qualifying service
may, by giving notice of not less than 3 months in writing to
the appointing authority, retire from service. There is provision
for requesting for relaxation of the notice period of 3 months
and for consideration thereof. As to what the appointing
authority is to do is governed squarely by sub-rule (2). That
sub-rule states that the notice of voluntary retirement given
under sub-rule (1) "shall" require acceptance by the appointing
authority subject to Rule 2.2 of the Punjab Civil Services Rules
(Vol.II). Acceptance of the request is subject to Rule 2.2 of the
Rules. But the proviso to sub-rule (2) of Rule 5.32(B) states
that if the permission to retire is not refused within the period
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21

specified in sub-rule (1), the retirement shall become effective

from the date of expiry of the period. Therefore, it is clear that
if a person has completed 20 years qualifying service and has
given a notice under Rule 5.32(B) of 3 months (or if his request
for relaxation of 3 months is accepted), then the request "shall"
be accepted subject to invoking the provision of Rule 2.2 of the
Punjab Civil Services Rules (Vol.II). Under Rule 2.2, the "future
good conduct" of an employee is an implied condition of every
grant of pension. In other words, what all it means is that even
if the acceptance of the voluntary retirement is mandatory,
there is an obligation cast on the retired employee to maintain
good conduct after such retirement. The words "future good
conduct" mean good conduct after retirement. If the employee
does not continue to maintain good conduct after retirement,
then the Government can withhold or withdraw the pension or
a part of it in case he is convicted of serious crime or in case
he be guilty of grave misconduct. Such a decision to withhold
or withdraw the whole or part of pension would be final and
conclusive, that is to say, so far as the governmental hierarchy
is concerned. It will be noticed that Rule 2.2 does not obstruct
the voluntary retirement to come into force automatically on
the expiry of 3 months and it only enables withdrawal 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 to compulsorily retire an employee before the age
of superannuation provided the employee has reached a
particular age or has completed a particular number of years
of qualifying service in case it is found that his service has not
been found to be satisfactory. The rules also provide that an
employee who has completed the said number of years in his
age or who has completed the prescribed number of years of
qualifying service could give notice of, say, three months that
he would voluntarily retire on the expiry of the said period of
three months. Some Rules are couched in language which
results in an automatic retirement of the employee upon expiry
of the period specified in the employee's notice. On the other
hand, certain rules in some other departments are couched in
language which makes it clear that even upon expiry of the
period specified in the notice, the retirement is not automatic
and an express order granting permission is required and has
to be communicated. The relationship of master and servant in
the latter type of rules continues after the period specified in
the notice till such acceptance is communicated; refusal of
permission could also be communicated after 3 months and
the employee continues to be in service. Cases like Dinesh
Chandra Sangma v. State of Assam, (1977) 4 SCC 441, B.J.
Shelat v. State of Gujarat, (1978) 2 SCC 202 and Union of
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22

India v. Sayed Muzaffar Mir, (1995) Supp (1) SCC 76 belong to

the former category where it is held that upon the expiry of the
period, the voluntary retirement takes effect automatically as
no order of refusal is passed within the notice period. On the
other hand H.P. Horticultural Produce Marketing & Processing
Corpn. Ltd. v. Suman Behari Sharma, (1996) 4 SCC 584
belongs to the second category where the bye-laws were
interpreted as not giving an option "to retire" but only provided
a limited right to "seek" retirement thereby implying the need
for a consent of the employer even if the period of the notice
has elapsed. We shall refer to these two categories in some
detail.

*** *** ***

13. Thus, from the aforesaid three decisions it is clear that

if the right to voluntarily retirement is conferred in absolute
terms as in Dinesh Chandra Sangma case by the relevant
rules and there is no provision in rules to withhold permission
in certain contingencies the voluntary retirement comes into
effect automatically on the expiry of the period specified in the
notice. If, however, as in B.J. Shelat case and as in Sayed
Muzaffar Mir case, the concerned authority is empowered to
withhold permission to retire if certain conditions exist, viz., in
case the employee is under suspension or in case a
departmental enquiry is pending or is contemplated, the mere
pendency of the suspension or departmental enquiry or its
contemplation does not result in the notice for voluntary
retirement not coming into effect on expiry of the period
specified. What is further needed is that the concerned
authority concerned must pass a positive order withholding
permission to retire and must also communicate the same to
the employee as stated in B.J. Shelat case and in Sayed
Muzaffar Mir case before the expiry of the notice period.
Consequently, there is no requirement of an order of
acceptance of the notice to be communicated to the employee
nor can it be said that non-communication of acceptance
should be treated as amounting to withholding of permission.

*** *** ***

18. In the case before us sub-rule (1) of Rule 5.32(B)

contemplates a “notice to retire” and not a request seeking
permission to retire. The further "request" contemplated by the
sub-rule is only for seeking exemption from the 3 months’
period. The proviso to sub-rule (2) makes a positive provision
that "where the appointing authority does not refuse to grant
the permission for retirement before the expiry of the period
specified in Sub-rule (1), the retirement shall become effective
from the date of expiry of the said period. The case before us
stands on a stronger footing than Dinesh Chandra Sangma
case so far as the employee is concerned. As already stated
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23

Rule 2.2 of Punjab Civil Service Rules Vol.II only deals with a
situation of withholding or withdrawing pension to a person
who has already retired.”

19. Rule 5.32(b)(2) of Punjab Rules clearly provide that where the

appointing authority does not refuse to grant the permission to retire

before the expiry of the period in sub-rule (1), the retirement shall

become effective from the date of the expiry of the said date. There is

no such provision of notice becoming effective from the date of the

expiry of the period in the Fundamental Rules as applicable to the

State of Uttar Pradesh. In the context of the proviso, the notice

becomes effective from the date of expiry of the period, in that context

this Court has made observations in the aforesaid dictum that Rule

2.2 does not obstruct the voluntary retirement to come into force

automatically on the expiry of three months.

20. In the State of Haryana (supra), this Court also observed that

some rules are couched in language, which results in an automatic

retirement of the employee upon the expiry of the period specified in

the employee’s notice. On the other hand, certain rules in some other

departments are couched in the language which makes it clear that

even upon expiry of the period specified in the notice, the retirement is

not automatic and an express order granting permission is required

and has to be communicated. The relationship of master and servant

in the latter type of rules continues after the period specified in the
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24

notice till such acceptance is communicated and the refusal of

permission could also be communicated after three months and the

employee continues to be in service. It is the aforesaid later

observations made by this Court, which are squarely applicable to the

rule in question as applicable in the State of Uttar Pradesh.

21. In Himachal Pradesh Horticultural Produce Marketing &

Processing Corporation Ltd. vs. Suman Behari Sharma (1996) 4 SCC

584, the Court considered the language employed in the applicable

bye-laws. It was observed that if the permission for voluntary

retirement is not granted, the employee would not be able to retire.

The Court observed:

“8. Clause (2) of the bye-law inter alia provides for voluntary
retirement 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 that
behalf and his request would become effective only if he is
'permitted' to retire. The words "may be...permitted at his
request" clearly indicate that the said clause does not confer
on the employee a right to retire on completion of either 25
years’ service or on attaining the age of 50 years. It confers on
the employee a right to make a request to permit him to retire.
Obviously, if request is not accepted and permission is not
granted the 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) and permits the employee who has not completed 25
years’ service or has attained 50 years of age to seek
retirement if he has completed 20 years’ satisfactory service.
He can do so by giving three months' notice in writing. The
contention of the learned Counsel for HPMC was that though
para 5 of the bye-law relaxes the conditions prescribed by para
(2), the relaxation is only with respect to the period of service
and attainment of age of 50 years and it cannot be read to
mean that the requirement of permission is dispensed with.
On the other hand, the learned counsel for the respondent
submitted that as para 5 opens with the words
"Notwithstanding the provision under para (2)" and the words
"may be...permitted at his request" are absent that would
mean that the employee has a right to retire after giving three
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25

months' notice and no acceptance of such a request is

necessary. We cannot agree with the interpretation canvassed
by learned counsel for the respondent. The bye-law has to be
read as a whole. Para (2) thereof confers a right on the
employee to request for voluntary retirement on completion of
25 years’ service or on attaining the age of 50 years, but his
desire would materialise only if he is permitted to retire and
not otherwise. Ordinarily, in a matter like this an employee
who has put in less number of years of service would not be on
a better fooling than the employee who has put in longer
service. It could not have been the intention of the rule-making
authority while framing para 5 of the bye-law to confer on
such an employee a better and a larger right to retire after
giving three months' notice in writing. The words "seek
retirement" in para 5 indicate that the right which is conferred
by it is not the right to retire but a right to ask for retirement.
The word "seek" implies a request by the employee and
corresponding acceptance or permission by HPMC. Therefore,
there cannot be automatic retirement or snapping of service
relationship on expiry of three months' period.”

22. In Padubidri Damodar Shenoy vs. Indian Airlines Ltd. & Anr.

(2009) 10 SCC 514, a question arose of voluntary retirement from

service which was not acceded to by the competent authority by

according approval. The matter travelled to this Court. It was held that

voluntary retirement did not come into force. The Court observed:

“33. There is nothing to indicate in Regulation 12 that if

employer decides to withhold approval of voluntary retirement,
such refusal of approval must be communicated to the
petitioner during the period of notice. True it is that notice of
three months for voluntary retirement given by an employee
covered by Clause (b) remains valid even if no communication
is received within the notice period but it becomes effective
only on its approval by the competent authority. As a matter of
fact, this seems to have been understood by both the parties.

34. The appellant issued a notice of voluntary retirement

under Regulation 12(b) on 30-9-2005. The notice period was to
expire on 31-12-2005. It is an admitted position that the
competent authority neither gave an approval nor indicated
disapproval to the appellant within the notice period of three
months. The employee never treated that there has been
cessation of employment on the expiry of three months’ notice
period inasmuch as he continued to attend his duties after 31-
12-2005 until 30-6-2006. It is only by his letter dated 8-6-
2006 that the appellant requested the respondent to relieve
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26

him in terms of his notice dated 30-9-2005 by 30-6-2006 and

he stopped attending work from 1-7-2006. The letter dated 8-
6-2006 does not make any material difference as the fact of
the matter is that after the expiry of the notice period, the
appellant continued to attend his duties for many months
thereafter.

35. By the letter dated 15-9-2006 the respondent

communicated to the appellant that his application for
voluntary retirement under Service Regulation 12(b) has not
been acceded to by the competent authority. Since the notice
for voluntary retirement by an employee who has not attained
55 years but has completed 20 years of continuous service,
under the proviso appended to Regulation 12(b), is subject to
approval by the competent authority and that approval was
not granted, the voluntary retirement of the appellant never
came into effect.”

23. In C.V. Francis vs. Union of India & Ors. (2013) 14 SCC 486, this

Court observed that it would depend upon the language used in the

rule whether notice for voluntary retirement would come into effect

automatically. There has to be a stipulation in the scheme providing

that even without acceptance of his application, it would be deemed

that the application for voluntary retirement had been accepted. There

is no such provision in the rules in question. In C.V. Francis (supra),

this Court observed:

“13. It is well-established that a voluntary retirement scheme

introduced by a company, does not entitle an employee as a
matter of right to the benefits of the Scheme. Whether an
employee should be allowed to retire in terms of the scheme is
a decision which can only be taken by the employer company,
except in cases where the scheme itself provides for retirement
to take effect when the notice period comes to an end. A
voluntary retirement scheme introduced by a company is
essentially a part of the company's desire to weed out the
deadwood.

14. The petitioner's contention that his application for

voluntary retirement came into effect on the expiry of the
period of notice given by him must fail, since there was no
such stipulation in the scheme that even without acceptance
of his application it would be deemed that the petitioner's
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27

voluntary retirement application had been accepted. Once that

is not accepted, the entire case of the petitioner falls to the
ground. The decision in Tek Chand case (2001) 3 SCC 290 will
not, therefore, have any application to the facts of this case,
particularly when the petitioner's application for voluntary
retirement had not been accepted and he had been asked to
rejoin his services. The petitioner was fully aware of this
position as he continued to apply for leave after the notice
period was over.”

24. Decision in Tek Chand vs. Dile Ram (2001) 3 SCC 290 has been

relied upon by the respondents. This Court considered Rule 48-A(2) of

the Central Civil Services (Pension) Rules, 1972, proviso to said rule

contained a provision where the appointing authority did not refuse to

grant the permission for retirement before the expiry of the period

specified in the said notice, the retirement shall become effective from

the date of expiry of the said period. The relevant observations are

extracted hereunder:

“31. It is not disputed that the appointing authority did not

refuse to grant the permission for retirement before expiry of
the period specified in the said application dated 5.12.1994
given by Nikka Ram. Further, no communication whatsoever
was made to him within the said period. During the course of
the argument before the High Court, the learned counsel for
the parties referred to Rule 48-A of the Rules, of course,
placing their own interpretation. Since the said Rule is
material and has bearing on the question to be determined, it
is extracted below:

"48-A. Retirement on completion of 20 years’

qualifying service. - (1) At any time after a
government servant has completed twenty years'
qualifying service, he may, by giving notice of not
less than three months in writing to the appointing
authority, retire from service:
Provided that this sub-rule shall not apply to a
government servant, including scientist or technical
expert who is -

(i) on assignments under the Indian Technical and

Economic Cooperation (ITEC) Programme of the
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28

Ministry of External Affairs and other aid

programmes.

(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 resumed the charge of the post in
India and served for a period of not less than one
year.

(2) The notice of voluntary retirement given under

sub-rule (1) shall require acceptance by the
appointing authority:

Provided that where the appointing authority does

not refuse to grant the permission for retirement
before the expiry of the period specified in the said
notice, the retirement shall become effective from
the date of expiry of the said period.”

*** *** ***

33. It is clear from sub-rule (2) of the Rule that the appointing
authority is required to accept the notice of voluntary
retirement given under sub-rule (1). It is open to the
appointing authority to refuse also, on whatever grounds
available to it, but such refusal has 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 the appointing authority does
not refuse to grant the permission for retirement before the
expiry of the period specified in the said notice, the retirement
sought for becomes effective from the date of expiry of the said
period. In this case, admittedly, the appointing authority did
not refuse to grant the permission for retirement to Nikka Ram
before the expiry of the period specified in the notice dated
5.12.1994. The learned Senior Counsel for the respondent
argued that the acceptance of voluntary retirement by
appointing authority in all cases is mandatory. In the absence
of such express acceptance the government servant continues
to be in service. In support of this submission, he drew our
attention to Rule 56(k) of Fundamental Rules. He also
submitted that acceptance may be on a later date, that is, even
after the expiry of the period specified in the notice and the
retirement could be effective from the date specified in the
notice. Since the proviso to sub-rule (2) of Rule 48-A is clear in
itself and the said Rule 48-A is self-contained, in our opinion,
it is unnecessary to look to other provisions, more so in the
light of law laid down by this Court. An argument that
acceptance can be even long after the date of the expiry of the
period specified in the notice and that the voluntary retirement
may become effective from the date specified in the notice, will
lead to anomalous situation. Take a case, if an application for
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29

voluntary retirement is accepted few years later from the date

specified in the notice and voluntary retirement becomes
operative from the date of expiry of the notice period itself,
what would be the position or status of such a government
servant during the period from the date of expiry of the notice
period up to the date of acceptance of the voluntary retirement
by the appointing authority? One either continues in service or
does not continue in service. It cannot be both that the
voluntary retirement could be effective from the date of expiry
of the period mentioned in the notice and still a Government
servant could continue in service till the voluntary retirement
is accepted. The proviso to sub-rule (2) of Rule 48-A of the
Rules does not admit such situation.”

*** *** ***

35. In our view, this judgment fully supports the contention

urged on behalf of the appellant in this regard. In this
judgment, it is observed that there are three categories of rules
relating to seeking of voluntary retirement after notice. In the
first category, voluntary retirement automatically comes into
force on expiry of notice period. In the second category also,
retirement comes into force unless an order is passed during
notice period withholding permission to retire and in the third
category voluntary retirement does not come into force unless
permission to this effect is granted by the competent authority.
In such a case, refusal of permission can be communicated
even after the expiry of the notice period. It all depends upon
the relevant rules. In the case decided, the relevant Rule
required acceptance of notice by appointing authority and the
proviso to the Rule further laid down that retirement shall
come into force automatically if the appointing authority did
not refuse permission during the notice period. Refusal was
not communicated to the respondent during the notice period
and the Court held that voluntary retirement came into force
on expiry of the notice period and subsequent order conveyed
to him that he could not be deemed to have voluntary retired
had no effect. The present case is almost identical to the one
decided by this Court in the aforesaid decision.”

The rule which came up for consideration was entirely different.

There is no provision contained in rule in question in the case at hand

like the proviso to Rule 48-A(2) referred to above due to which the

retirement shall become effective from the date of expiry of period of

notice in case the same was not refused.

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25. In our considered opinion, under Rule 56 as applicable in the

State of Uttar Pradesh, notice of voluntary retirement does not come

into effect automatically on the expiry of the three months period.

Under the rule in question, the appointing authority has to accept the

notice for voluntary retirement or it can be refused on permissible

grounds.

26. In our opinion, the Rule 56(c) does not fall in the category where

there is an absolute right on the employee to seek voluntary

retirement. In view of the aforesaid dictum and what is held by this

Court, we find that the prayer made to make a reference to a larger

Bench, in case this Court does not follow the earlier decision is

entirely devoid of merit as on the basis of what has been held by this

Court in the earlier decisions, we have arrived at the conclusion. This

Court has authoritatively laid down the law umpteen number of time.

27. Reliance has also been placed on behalf of respondents on the

decision in Mahant Dhanmir vs. Madan Mohan, (1987) Supp SCC 528,

in which this Court observed that law should not be unsettled unless

there are compelling reasons. There is no dispute that the said

proposition has already been held. There is no question of law

unsettling the law but is of its application, which unfortunately

appears as against the interests of the respondents in view of language

employed in the rule in question. An attempt in vain has been made

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31

by the respondents to wriggle out of the clutches of the various

decisions by raising the aforesaid argument.

28. It was also urged that the Rule 56(c) does not require the

employee to give reasons for voluntary retirement. No doubt under

Rule 56(c) there is no requirement for an employee to give any reason,

however, while considering the prayer, the appointing authority has to

keep in mind the public interest as provided in the Explanation

attached to F.R. 56.

29. Learned counsel also urged that outside the proviso to Rule

56(d), there is no general right of appointing authority to reject the

notice of voluntary retirement of an employee on the ground of public

interest. For this purpose, threefold submission has been made.

Firstly, that the principle of liberty under the Constitution and

specifically Part III of the Constitution requires that any restriction on

freedom and liberty must have 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 Government are delineated in

terms of Fundamental Rules governing State Government employees.

Thus, if any Fundamental Rules do not restrict the general liberty of

an employee or do not empower the employer to act in a certain way,

an action otherwise would be impermissible. For this purpose,

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32

reliance has been placed on Moti Ram Deka vs. G.M., North East

Frontier Railway, (1964) 5 SCR 683. It was also submitted that public

interest restriction that applies to the State in the case of compulsory

retirement, 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
validly exercised so as to curtail or affect the rights guaranteed
to public servants under Art. 311(1). Art. 311(1) is intended to
afford a sense of security to public servants who are
substantively appointed to a permanent post and one of the
principal benefits which they are entitled to expect is the
benefit of pension after rendering public service for the period
prescribed by the Rules. It would, we think, not be legitimate
to contend that the right to earn a pension to which a servant
substantively appointed to a permanent post is entitled can be
curtailed by Rules framed under Art. 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 must be held that no Rule
framed under Art. 309 can trespass on the rights guaranteed
by Art. 311. This position is of basic importance and must be
borne in mind in dealing with the controversy in the present
appeals.

30. The reliance placed on Moti Ram Deka (supra) is of no avail as it

has no application to the instant case as no right conferred by Article

311 of the Constitution can be said to have been taken away and

service rule dehors of it can provide for the concept of public interest.

31. There is no doubt about it that Rule 56(d) provides that where a

disciplinary enquiry is pending or contemplated and in the case of

contemplated disciplinary enquiry, the Government servant shall be

informed before the expiry of notice that it has not been accepted. The

proviso to Rule 56(d) has no application where a disciplinary enquiry

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33

is not contemplated or pending. When the proviso itself is not

applicable, in no case it will dilute the provisions of Explanation with

respect to exigencies mentioned in clause (c) of Rule 56.

32. The submission made upon principle of liberty and its

curtailment, the law must be just, fair and reasonable can also not be

accepted as the Fundamental Rules are statutory rules and have been

made by the Governor under section 241(2)(b) of the Government of

India Act,1935 and provisions of rule in question cannot be said to be

unfair, unreasonable and oppressive.

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 vs. 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 post-graduate or post-doctoral courses
in specialised subjects…. To sympathise mawkishly
with the weaker sections by selecting sub-standard
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 specialists, 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 post-graduate or post-doctoral.”
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34

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 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 are 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 cater to the needs of the 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

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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 a provision in Rule 56 that a Government servant

may be extended benefit of an additional period of five years then an

actual period of service rendered by him there is the corresponding

obligation to serve in dire need.

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36. It was urged that in the State of Tamil Nadu, Government has

amended the rules not to retire Government doctors, if there is any

scarcity of doctors it is open to the Government of Uttar Pradesh to

amend its rules. In India, the Government sponsored Medical Services

to cater to the needs of poorest of the poor and have-nots otherwise

there is the commercialisation of the charitable medical profession. In

other States too, it is seen sometime that when a doctor is transferred

from one place to another, the doctor forwards application resigning

from the post or seeks voluntary retirement as he does not want to

move out 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 scenario people cannot be deprived of the services of good doctors. In

view of the scarcity of the doctors and the unfortunate privatisation

and commercialisation of the noble medical profession, for

maintaining the efficiency of the State Medical Services, the decision

taken by the Government is permissible as per rules and cannot be

interfered with. Unfortunately, the High Court has given the aforesaid

observations pointing out the shortage of specialised doctors and at

the same time has ultimately decided against the State Government

on wrong interpretation without considering the Explanation attached

to Rule 56 applicable in the State of Uttar Pradesh. The preface given

by the High Court is just opposite to its conclusion. The High Court
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ought to have rejected and not to allow the prayer of voluntary

retirement made by the doctors.

37. It was urged that some of the doctors suffered from neck pain

etc. as such prayer ought to have been accepted but they have not

given any such serious ailments which may make their functioning in

the hospital difficult in any manner whatsoever. It was the pretext

that was used by them to seek voluntary retirement. It is for the

Government to consider the efficacy. Doctors too have right under the

Rights of Persons with Disabilities Act, 2016, they can continue in

services unfettered by such ailments.

38. Under Article 47 it is the duty of the State to improve the public

health, which is a primary duty under the Directive Principles of the

State Policy and the statutory expression which may be enforced.

When we consider Article 51A containing Fundamental Duties, it is a

duty of every citizen under Article 51A(g) to have compassion for living

creatures and to have humanism is also contemplated under Article

51A(h) and to strive towards excellence in all spheres of individual and

collective activity so that the nation constantly rises to higher levels of

endeavours and achievement. It cannot be done by depriving poorest

of the poor essential medical services and to leave them at the mercy

of doctors. There cannot be an exodus from the Government Medical

Services at large, which is being projected in the instant case,

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definitely this cannot be permitted to happen within four corners of

law as it has to be living organism and has to live up to the essence

and spirit of constitution and cannot ignore and overlook needs of

poorest strata of the society.

39. It was urged that the State Government is discriminating

between the doctors in the Provincial Medical Services with the

doctors working in the State-owned Hospitals and Medical Colleges.

In the Medical Colleges etc. doctors are being permitted to retire.

Instances of 7 doctors have been given, who were permitted to retire in

2016, 2017 and 2018. Doctors of Medical Colleges are on a different

footing than that of Provincial Medical Services. Even otherwise in

view of the scarcity of the doctors, no ground of equality can be

claimed and the doctors of different services form different class, apart

from that there is no concept of negative equality that too against the

public interest. In case, 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 of

Punjab vs. Dr. Harbir Singh Dhillon, 2010 SCC Online P&H 6159 and

Dr. Kalpana Singh vs. State of Rajasthan, (2014) SCC Online Raj 6253,

were cited to show that the decision in Dinesh Chandra Sangma

(supra) had been followed. We have considered the aforesaid decisions

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and we find that it would depend upon the scheme of the Rules. Each

and every judgment has to be considered in the light of the provisions

which came up for consideration and question it has decided,

language employed in the rules, and it cannot be said to be of general

application as already observed by this Court in State of Haryana

(supra).

41. It was also contended that the State of Uttar Pradesh may

amend rules, in our opinion there is no such necessity in view of the

Explanation the State has already amended its rules so as to enable it

to pass an order with respect to retirement whether it is at the

instance of the Government or at the instance of the employee for both

the public interest is germane.

42. The submission was also made with respect to the imposition of

moratorium period of one year on retirement and that there should be

the recruitment of the doctors and thereafter acceptance of voluntary

retirement by the State. We do not propose to venture into it. The

action of the State Government was appropriate in disallowing the

prayer seeking voluntary retirement. The Government may fill the

vacancies if any. But that would not bring doctors of experience at

senior level and exodus of doctors cannot be permitted to weaken the

services when the public interest requires to serve for the sake of

efficient medical profession and fulfil Directive Principles of State

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Policy once they found statutory expression in the rules cannot be

made mockery. When services are required, denial of voluntary

retirement is permissible under the Rules applicable in the State of

Uttar Pradesh.

43. In view of the above, we allow the civil appeals and hereby set

aside the impugned judgment and order passed by the High Court.

The applications for intervention and to implead stand allowed.

…………………………..J.
(Arun Mishra)

…………………………..J.
(S. Abdul Nazeer)

August 21, 2018.

New Delhi.