# Dr. (Smt.) Rama Srivastava v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1360
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-23
- **Case number:** Writ-A No. 34284 of 2015
- **Bench:** Sudhir Agarwal, Brijesh Kumar Srivastava-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-smt-rama-srivastava-v-state-of-u-p-ors-43320
- **Pages:** 10

## Headnote

(A) Constitution of India, Art.-311(2)-
Dismissal on ground of unauthorized absent
from duty-12.09.02 to 23.06.2005-without
recording reason for not practicable to hold
enquiry-held-illegal, nullity.
Held: Para-16 & 17

## Text

1360
 INDIAN LAW REPORTS ALLAHABAD SERIES
9.

It
is
clarified
that
the
observations, if any, made in this order
are strictly confined to the disposal of the
bail application and must not be construed
to have any reflection on the ultimate
merits of the case.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2015
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE BRIJESH KUMAR
SRIVASTAVA-II, J.
Writ-A No. 34284 of 2015
with Writ-A No. 34289 of 2015
Dr. (Smt.) Rama Srivastava
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
S.P. Shukla
Counsel for the Respondents:
C.S.C.
(A) Constitution of India, Art.-311(2)-
Dismissal on ground of unauthorized absent
from duty-12.09.02 to 23.06.2005-without
recording reason for not practicable to hold
enquiry-held-illegal, nullity.
Held: Para-16 & 17
16. Unauthorized absence, no doubt, is a
mis-conduct and, if proved in departmental
inquiry conducted in accordance with the
rules, appropriate punishment can be
imposed upon the concerned government
servant
by
appointing
authority.
Dispensation of departmental inquiry is an
exception and cannot be resorted to in a
cursory, casual and whimsical manner. The
authority, if resorted to this exception, owe
a heavy responsibility to show that all
circumstances and conditions justifying
such recourse are strictly followed and
adhered to.
17. In view of the aforesaid exposition of
law and considering the fact that the
impugned order of dismissal nowhere
suggests
or
even
touches
on
the
satisfaction of competent authority that
disciplinary inquiry is not reasonable
practicable, we have no hesitation in
holding that it is a nullity and void ab
initio, being unconstitutional and violative
of Article 311(2) Second Proviso, clause
(b) of Constitution.
(B) Constitution of India, Art.-226-Service
law-petitioner due to long sickness-on
07.12.06 applied for voluntarily retirementwithout accepting or refusing disciplinary
proceeding initiated-clearly illegal without
jurisdiction.
Held: Para-26In the present case, at the time when
petitioner applied for voluntary retirement,
neither any disciplinary inquiry was pending
nor
contemplated.
Therefore,
without
taking decision on petitioner's application
for
voluntary
retirement
initiation
of
disciplinary inquiry by respondents was
clearly illegal and without jurisdiction.
Case Law discussed:
(1985) 3 SCC 398; (1991) 1 SCC 362; AIR 2014
SC 2922; (1978) 2 SCC 202; (1997) 4 SCC 441;
(1995) 1 UPLBEC 146 (SC); Spl. Appeal No. 649
of 1994 decided on 31st January 1995; 2007(2)
UPLBEC 69; (2010) ILR 3 All. 1199=(2011) 2
UPLBEC 992.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. The petitioner after being selected
through U.P. Public Service Commission
against the post of Medical Officer in
Public, Medical and Heath Services
(hereinafter referred to as the "PMHS"),
was appointed as "Women Medical
Officer" vide letter of appointment dated
09.11.1999. She was posted at Primary
Health Center, Dalmau, District Rai
Bareilly where she joined on 21.02.1991.
She was transferred to Silver Jubilee
3 All] Dr. (Smt.) Rama Srivastava Vs. State of U.P. & Ors.
1361
Maternity Home,Lucknow, where she joined
on 14.07.1992 and thereafter continued to
work thereat. While working at Lucknow she
fell ill and proceeded on casual leave on
12.09.2002. She actually suffered cervical disc
prolapse and was under treatment of Dr.
Sanjay
Jha,
Neurophysiology
in
the
Department of Neurology, Sanjay Gandhi
Post Graduate Institution, Lucknow. Since her
illness continued, she applied for medical
leave w.e.f. 16.09.2002. Competent authority,
however, compelled the petitioner to join her
duty on 30.12.2002 and thereafter she was
transferred to Hardoi, in public interest, vide
transfer
order
dated
17.06.2003.
On
22.06.2005 petitioner submitted her joining in
the office of Chief Medical Officer but since
her ailment had continued, she proceeded on
leave on medical ground w.e.f. 23.06.2005. It
is alleged that petitioner went to join her duty
from Lucknow to Hardoi by Car and during
road travel her ailment of cervical disc
prolapse revived causing petitioner bed ridden
and hence she proceeded on leave on medical
ground. Thereafter she continued to send
applications seeking leave on medical ground
but was not communicated any decision by
competent
authority.
Ultimately,
she
submitted application seeking retirement
voluntarily on 07.12.2006 under Fundamental
Rule 56, since she had completed minimum
required service, and, was eligible therefor.
Neither any decision was taken in respect of
her leave applications nor on application dated
07.12.2006 seeking retirement voluntarily,
compelling petitioner to file Writ Petition No.
1785(SB) of 2008 (renumbered as W.P. No.
34289 of 2015) (hereinafter referred to as
"First Petition") seeking a mandamus to
respondents to accept her voluntary retirement
application. Prayer in this writ petition reads
as under:
"a. ISSUE, a writ order or direction
in
the
nature
of
MANDAMUS
commanding the respondents to accept the
voluntary retirement application of the
petitioner and grant her voluntary retirement
w.e.f. 01.07.2005 and further command them
to settle the dues of the petitioner including
the terminal dues, salary and medical claims
and also fix her pension as admissible under
Rules along with interest at the rate of 18%
per annum as the Authorities are to blame
themselves for such a long delay in taking
the decision in the matter."
2. The petitioner in the meantime
also
sent
application,
requesting
respondents to settle her outstanding dues
towards unpaid salary and other terminal
dues, like medical reimbursement etc.
Instead of taking any action on petitioner's
applications,
respondents
initiated
disciplinary inquiry vide office memo
dated 27.02.2009. Thereafter it appears
that dispensing with disciplinary inquiry
the State Government in purported
exercise of power under Article 311(2)
and (3) passed an order dated 03.05.2010
dismissing/removing petitioner alongwith
41 other women Medical Officers, on the
ground of their continuous and long
absence, dispensing disciplinary inquiry.
It is also interesting to note that inquiry
report was submitted on 10/11.11.2010 by
Inquiry Officer pursuant to disciplinary
inquiry
initiated
upon
letter
dated
17.03.2009 of Additional Director, Health
to
C.M.O.,
Hardoi.
Even
before
submission of inquiry report, petitioner
was dismissed/removed from service,
vide
order
dated
03.05.2010,
by
dispensing with disciplinary inquiry.
Consequently,
the
application
of
petitioner seeking voluntary retirement
was rejected vide order dated 10.05.2011,
which has been challenged in the W.P.
No. 34284/2015 (hereinafter referred to as
"Second Petition").
1362
 INDIAN LAW REPORTS ALLAHABAD SERIES
3. In the Second Petition, the
petitioner has prayed for following
reliefs:-
"a. ISSUE a writ, order or direction
in the nature of CERTIORARI quashing
the
impugned
uncommunicated
termination order said to be dated
03.05.2010 and also the impugned order
dated
10.05.2011
as
contained
in
Annexure No.1.
b. ISSUE a writ, order or direction in
the nature of MANDAMUS commanding
the respondent No.2 to sanction/consider
the leave application of the petitioner and
then grant Voluntary Retirement to the
petitioner with effect from 01.07.2005 and
settle her terminal dues and salary etc., in
accordance with law without any further
delay along with interest at the rate of
18% per annum."
4. On behalf of respondents, a counter
affidavit has been filed annexing a copy of
dismissal
order
dated
03.05.2010
as
annexure CA-1, wherein it is mentioned that
despite public notice published in daily
newspapers
"Amar
Ujala",
"Hindustan
Times" and "Dainik Jagran" and also placing
information
on
the
website
of
uphealth.nic.in, petitioner and other Medical
Officers did not submit their joining on duty.
Their absence since long shows that they are
not willing to serve Government service. On
account of their unauthorized absence,
maintenance of health service in State was in
difficulty and new appointments also could
not be made. Since absentee Medical
Officers, despite notice, had failed to join and
are absent unauthorizedly from place of their
posting since long, they are being dismissed
from service. Name of petitioner is at serial
no. 11 in the said order. It is further stated
that on account of continuous unauthorized
absence, petitioner was issued charge sheet
dated 27.02.2009 (Annexure-2 to the counter
affidavit in the first petition), which contains
a single charge that she has been
unauthorizedly absent for the last two years
and has not complied with the orders of
competent authority for joining her service,
hence she is guilty of dereliction of duty. The
Inquiry Officer, i.e., Additional Director,
Medical, Health and Family Welfare,
Lucknow Region, Lucknow submitted his
report dated 10/11.11.2010, stating that since
petitioner has not submitted reply to charge
sheet, therefore, after perusing documents he
is submitting report holding petitioner guilty.
5. It is said that the charge sheet was
duly received by petitioner whereafter she
sent letter dated 22.03.2009 requiring the
respondents to take a decision on her
application for voluntary retirement. In para
4 it is said that inquiry report held petitioner
guilty and petitioner was dismissed from
service. The relevant averment in the
counter affidavit contained in para 4, reads
as under:
"4. The the contents of paragraph 2 of
the writ petition are misconceived, hence
denied. It is submitted that the petitioner
was already dismissed from service;
therefore, she was not eligible for Voluntary
Retirement. The order dated 10.05.2011
was passed in compliance of the order
dated 30.11.2010 passed by this Hon'ble
Court in writ petition no. 1721 of 2010. It is
respectfully submitted that it is a clever
move of the petitioner that she is making use
of order dated 10.05.2011 to rake up the
issue of her dismissal which is already a
dead matter as she was dismissed from
service
by
means
of
order
dated
03.05.2010. The petitioner remained quiet
for such a long period and suddenly woke
up to raise the issue of dismissal in the grab
of this order dated 10.05.2011."
3 All] Dr. (Smt.) Rama Srivastava Vs. State of U.P. & Ors.
1363
6.
Challenging the charge sheet the
petitioner submitted letter dated 27.02.2009
on the ground that her application for
voluntary retirement has been submitted
which is still pending and without taking a
decision, charge sheet has been issued. The
petitioner then filed writ petition 1721 (SB)
of 2010, which was disposed of finally by
Division Bench on 30.11.2010 passing the
following order:
"Heard learned counsel for the
petitioner, learned standing counsel and
perused the record.
Present petition has been preferred
under Article 226 of the Constitution of India
for issuance of a writ in the nature of
certiorari, quashing the impugned letter
dated 27.2.2009, along with chargesheet and
also the disciplinary proceedings with
consequential benefits. The impugned Office
memo has been issued against the petitioner
for her indulgence in private practice. Prior
to issuance of the Office memo, the petitioner
has
submitted
her
representation
for
voluntary retirement but the same is pending.
Accordingly, we direct that before
proceeding
with
the
disciplinary
proceeding to its logical end, the
respondents shall decide petitioner's
representation for voluntary retirement by
passing a speaking and reasoned order in
accordance with law expeditiously and
preferably say, within three month from
the date of receipt of a certified copy of
this order and communicate decision.
The writ petition is finally disposed
of."
7. A supplementary counter affidavit
has been filed by respondents, stating that
dismissal order dated 03.05.2010 was
passed after approval by U.P. Public
Service Commission, who advised that the
State Government is competent enough to
take action under Article 311(2) and (3) and
thereafter dismissal order was passed.
8. Petitioner has filed rejoinder and
supplementary
rejoinder
affidavit
reiterating the basic facts stated in writ
petition.
9. Sri Umesh Chandra, learned
Senior Advocate advanced, in substance,
the following submissions:
I. Once departmental inquiry was
already initiated, without holding and
completing the same in accordance with
U.P. Government Service (Discipline and
Appeal) Rules, 1999 (hereinafter referred
to as the "Rules, 1999"), the respondents
have dismissed the petitioner illegally.
II. Dismissal/removal of petitioner,
under Article 311(2) second proviso by
dispensing
with
disciplinary
inquiry,
particularly when the same was already
pending, is clearly illegal, void ab initio and
not only it violates the pre-conditions of
attracting Article 311(2) proviso, clause (b),
but also a pretext on the part of respondents
to deny constitutional protection available to
petitioner under Article 311(2), i.e. adequate
opportunity of defence.
III.
Once
an
application
under
Fundamental Rule 56(c) and (d) was
submitted seeking voluntary retirement it
was incumbent upon respondents to take
decision thereon first but keeping such
application pending for years together and
thereafter rejecting the same on the ground
that petitioner has been dismissed/ removed
from service by order dated 03.05.2010 is
nothing but a camouflage to deny legally
vested rights to petitioner if she would have
been allowed voluntary retirement.
10. Learned Standing Counsel, on
the contrary, submitted that petitioner was
1364
 INDIAN LAW REPORTS ALLAHABAD SERIES
absent for years together, unauthorizedly and
illegally, hence her request for voluntary
retirement could not have been accepted. Her
application, therefore, had rightly been
rejected and she has been dismissed from
service after dispensing with disciplinary
inquiry, since she was absent for a long
period.
11. The first question which has to
be considered by this Court is whether
dismissal of petitioner by dispensation of
disciplinary inquiry, while it was pending,
and charge sheet was already served, by
exercising power under Article 311(2)
second proviso is justified or not.
12. Article 311(2) reads as under:
(2)No such person as aforesaid shall
be dismissed or removed or reduced in rank
except after an inquiry in which he has been
informed of the charges against him and
given a reasonable opportunity of being
heard in respect of those charges:
Provided that where it is proposed
after such inquiry, to impose upon him
any such penalty, such penalty may be
imposed on the basis of the evidence
adduced during such inquiry and it shall
not be necessary to give such person any
opportunity of making representation on
the penalty proposed:
Provided further that this clause
shall not apply
(a) where a person is dismissed or
removed or reduced in rank on the
ground of conduct which has led to his
conviction on a criminal charge; or
(b) where the authority empowered
to dismiss or remove a person or to
reduce him in rank is satisfied that for
some reason, to be recorded by that
authority in writing, it is not reasonably
practicable to hold such inquiry; or
(c)
where the President or the
Governor, as the case may be, is satisfied
that in the interest of the security of the
State, it is not expedient to hold such
inquiry."
13. Learned Standing Counsel at the
outset, submitted that clauses (a) and (c) of
Second Proviso to Article 311 (2) are not
attracted in case in hand and the impugned
order of dismissal dated 3.10.2011 has to be
tested on the anvil of Article 311(2) second
proviso, clause (b). It provides that a
disciplinary inquiry would not be necessary
if competent authority empowered to dismiss
or remove or reduce in rank a public servant,
is satisfied that for some reason to be
recorded by that authority in writing, it is not
"reasonably practicable" to hold such
inquiry. Therefore, in order to justify exercise
of power under Article Article 311(2) second
proviso, clause (b), competent authority is
obliged to record a finding with reasons that
disciplinary inquiry is not "reasonably
practicable" in the entire order of dismissal
dated 3.5.2010. There is not even a whisper
that the disciplinary enquiry is not reasonably
practicable what to say, mention of reasons
therefor. The only thing which has been
repeated in the entire order is that Medical
Officers including petitioner were absent
from duty since long and did not join duty
which is an act or omission, constituting
misconduct on the part of holders of civil
post. This action or inaction showing
'misconduct' on the part of petitioner and
other Medical Officers covered by impugned
dismissal order dated 3.5.2010 would have
justified disciplinary enquiry against them as
contemplated under Article 311(2) read with
procedure prescribed in Rules, 1999, but this
cannot be construed so as to satisfy the
requirement of Article 311(2) second
proviso, clause (b). We have no hesitation in
holding that the impugned order in this writ
3 All] Dr. (Smt.) Rama Srivastava Vs. State of U.P. & Ors.
1365
petition
nowhere
even
suggests
that
disciplinary inquiry is not reasonably
practicable. The reason for it is also
conspicuously missing.
14.
Holding of departmental inquiry
before dismissal or removal, is mandatory
under Article 311(2) read with procedure
prescribed under Rules, 1999. A heavy onus
lay upon respondent to show that from all the
angles, the case is covered by one of the
grounds on which departmental inquiry may
not be held or dispensed with i.e. when it is
not "reasonably practicable". Article 311
(2)(b) was considered by a Constitution
Bench in Union of India and another Vs.
Tulsiram Patel, (1985) 3 SCC 398, and the
Court
said:
"130. The condition precedent for the
application of Clause (b) is the satisfaction of
the disciplinary authority that "it is not
reasonably practicable to hold" the inquiry
contemplated by Clause (2) of Article 311.
What is pertinent to note is that the words
used are "not reasonably practicable" and not
"impracticable". According to the Oxford
English Dictionary "practicable" means
"Capable of being put into practice, carried
out in action, effected, accomplished, or
done; feasible". Webster's Third New
International Dictionary defines the word
"practicable" inter alia as meaning "possible
to practice or perform: capable of being put
into
practice,
done
or
accomplished:
feasible". Further, the words used are not
"not practicable" but "not reasonably
practicable".
Webster's
Third
New
International Dictionary defines the word
"reasonably" as "in a reasonable manner: to a
fairly sufficient extent". Thus, whether it was
practicable to hold the inquiry or not must be
judged in the context of whether it was
reasonably practicable to do so. It is not a
total or absolute impracticability which is
required by Clause (b). What is requisite is
that the holding of the inquiry is not
practicable in the opinion of a reasonable
man taking a reasonable view of the
prevailing situation." (Emphasis added.)
15.
Again the Court explained
circumstances in which departmental inquiry
can be dispensed with by resorting to Article
311(2) Second Proviso, Clause (b) in
Jaswant Singh Vs. State of Punjab and Ors.
(1991) 1 SCC 362. This decision has been
followed very recently in Risal Singh Vs.
State of Haryana and others AIR 2014 SC
2922. Therein following a sting operation by
a Television channel in which appellant
Police Officer was found indulged in an act
of corruption, he was dismissed from service
without any inquiry by resorting to Article
311 (2) second proviso (b). The Court held
that before resorting to Article 311(2) second
proviso (b), appropriate and valid reasons
have to be recorded, as contemplated in the
Constitution. Dispensation of departmental
inquiry, a constitutional protection available
to civil servant, cannot be taken away or
denied on whims and caprices of appointing
authority or the disciplinary authority.
16. Unauthorized absence, no doubt, is
a mis-conduct and, if proved in departmental
inquiry conducted in accordance with the
rules, appropriate punishment can be
imposed upon the concerned government
servant
by
appointing
authority.
Dispensation of departmental inquiry is an
exception and cannot be resorted to in a
cursory, casual and whimsical manner. The
authority, if resorted to this exception, owe a
heavy responsibility to show that all
circumstances and conditions justifying such
recourse are strictly followed and adhered to.
17. In view of the aforesaid exposition
of law and considering the fact that the
impugned order of dismissal nowhere
1366
 INDIAN LAW REPORTS ALLAHABAD SERIES
suggests or even touches on the satisfaction
of competent authority that disciplinary
inquiry is not reasonable practicable, we
have no hesitation in holding that it is a
nullity
and
void
ab
initio,
being
unconstitutional and violative of Article
311(2) Second Proviso, clause (b) of
Constitution.
18.
Then comes the second question,
whether respondents could have proceeded
to initiate departmental enquiry when an
application seeking voluntary retirement was
already pending with the respondents. In the
present case, admittedly, application seeking
voluntary retirement was submitted by
petitioner on 7.12.2006. Charge sheet was
issued to petitioner vide office memo dated
27.2.2009 and inquiry report was submitted
by Enquiry Officer on 10/11.11.2010 which
was received by State Government on
1.12.2010 as stated in the order dated
10.05.2011 passed on application seeking
voluntary retirement.
19. It is also admitted that no final
order in the said enquiry has been passed
by respondent no.1 at any point of time.
The question is whether initiation of
disciplinary enquiry after three years of
receiving
application
for
voluntary
retirement is permissible or not. It would
be appropriate for the said purpose to
have a perusal of Fundamental Rule 56(c)
and (d) which read as under:
"56 (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
for twenty years."
(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 50 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
rates at which he was drawing them
immediately before his 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 in 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;
(emphasis added)
20. Fundamental Rule 56(d) prevents a
Government Servant from withdrawing a
notice given seeking voluntary retirement
3 All] Dr. (Smt.) Rama Srivastava Vs. State of U.P. & Ors.
1367
without permission of appointing authority
meaning thereby once such notice is given ,
so far as a Government Servant is concerned,
his part is over. He/she cannot withdraw the
same without permission of appointing
authority.
21. It may also be noticed hereat that
Fundamental Rule 56 itself, though
termed as "Rule", but has come on the
statute book by virtue of an Act of U.P.
Legislature i.e. UP Act U.P. Act No. 33 of
1976
U.P.
Fundamental
Rule
56
(Amendment and Validation) Act, 1976]
and therefore, is a principal legislation.
22.
A careful reading of FR-56(c)
further shows that a Government Servant can
be retired by employer prematurely without
assigning any reason after he attains the age
of fifty years by giving three months notice
at any time. The said Government Servant
can also voluntarily retire at any time after
attaining the age of forty five years giving a
similar three months notice. The proviso of
FR-56
(c)
further
provides
that
the
Government Servant may be retired by the
employer giving a shorter notice or without
any notice but in such a contingency, he may
be entitled to claim such amount for the
period of notice by which such notice falls
short of three months. Similarly, where the
Government Servant tenders notice, it is
open to appointing authority to allow him to
retire without any notice or for a shorter
period of notice without incurring any
liability to pay any penalty on account of
such permission. It further provides, where a
disciplinary proceeding is pending or
contemplated, the notice shall be effective
only if it is accepted by appointing authority,
provided that in a case of contemplated
enquiry, the government Servant is informed
before expiry of period of notice that the
same has not been accepted. Therefore, the
proviso restrict the right of Government
Servant to retire by tendering three months
notice, where a departmental enquiry is
pending and in such a case, voluntary
retirement would be effective only after the
said notice is accepted by appointing
authority, even if the period of notice is
expired,
but
where
enquiry
is
only
contemplated, in such a case, acceptance of
notice would be necessary provided the
Government Servant is informed by the
employer before expiry of period of his
notice that it has not been accepted.
23.
A somewhat similar provision
contained in Rule 161 of Bombay Civil
Service Rules came up for consideration
before Apex Court in B.J. Shelat Vs. State of
Gujrat and others, (1978) 2 SCC 202. Rule
161 of Bombay Civil Service Rules
empowered the Government Servant to retire
by giving a three months notice in writing
after attaining the age of 55 years. However,
proviso under Rule 161(2)(ii) restricted such
right
of
Government
Servant
where
departmental
enquiry
is
pending
or
contemplated or the Government Servant is
under suspension and the said proviso reads
as under :
"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-section."
24.
It was held that but for the
proviso, a Government Servant would be at
liberty to retire by giving not less then three
months notice to the appointing authority
after attaining the prescribed age. However,
proviso empowered the appointing authority
to withhold permission to retire. The Court
1368
 INDIAN LAW REPORTS ALLAHABAD SERIES
took the view that the proviso which
empowered the appointing authority to
withhold such permission contemplated a
positive action by appointing authority. It
has to communicate its intention of
withholding
of
permission
to
the
Government Servant. Where no such
decision is taken and communicated to the
Government Servant and the period of
notice is allowed to expire, then it would
result in allowing the Government Servant
to retire without taking any action. In order
to operate the proviso, it was necessary that
the Government should not only take a
decision but communicate it to the
Government Servant. It also held, where no
such decision is taken and communicated to
the Government Servant, after expiry of the
period of notice, no disciplinary action can
be taken against such Government Servant.
The Court relied on an earlier three Judges
Judgment in Dinesh Chandra Sangma Vs.
State of Assam and others, (1997) 4 SCC
441, where it was held that for retiring
voluntarily under FR-56(c), a Government
Servant does not require any positive order
of appointing authority unless required by
the Rules otherwise. Both the aforesaid
judgments have been followed in Union of
India & others Vs. Sayed Muzaffar Mir,
(1995) 1 UPLBEC 146 (SC), while
considering a pari materia provision under
Article 1801(d) of Railways Establishment
Code and in para-4 and 5 of the judgment, it
was held :
"4. There are two answers to this
submission. The first is that both the
provisions relied upon by the learned
counsel would require, according to us,
passing of appropriate order, when the
Government servant is under suspension (as
was the respondent), either of withholding
permission to retire or retaining of the
incumbent in service. It is an admitted fact
that no such order had been passed in the
present case. So, despite the right given to
the appropriate/competent authority in this
regard, the same is of no avail in the
present case as the right had not come to be
exercised. We do not know the reason(s)
thereof. May be, for some reason the
concerned authority thought that it would
be better to see off the respondent by
allowing him to retire.
5.The second aspect of the matter is
that it has been held by a three Judges Bench
of this Court in Dinesh Chandra Sangma V.
State of Assam, 1977 (4) SCC 441, which has
dealt with a pari materia provision finding
place in Rule 56(c) of the Fundamental
Rules, that where the Government servant
seeks premature retirement the same does
not require any acceptance and comes into
effect on the completion of the notice period.
This decision was followed by another three
Judges Bench in B.J. Shelat V. State of
Gujrat, 1978 (2) SCC 202." (emphasis
added)
25. The aforesaid decisions have been
followed in Surendra Narain Singh Vs.
D.I.G., Special Appeal No. 649 of 1994
decided on 31st January 1995 and State of
U.P. vs. Krishna Chandra Agarwal 2007(2)
UPLBEC 69 and by learned Single Judge in
Chandra Bahadur Pandey Vs. State of U.P.
and others (2010) ILR 3 All.1199=(2011)2
UPLBEC 992.
26.
In the present case, at the time
when petitioner applied for voluntary
retirement, neither any disciplinary inquiry
was pending nor contemplated. Therefore,
without taking
decision on petitioner's
application for voluntary retirement initiation
of disciplinary inquiry by respondents was
clearly illegal and without jurisdiction.
27.
In view of the above discussion,
both the writ petitions are hereby allowed.
3 All] Smt. Abha Dwivedi Vs. State of U.P. & Ors.
1369
Dismissal order dated 3.5.2010 and the order
dated 10.05.2011 are hereby quashed.
Respondent no.1 is further directed to take
appropriate
decision
on
petitioner's
application seeking voluntary retirement in
the light of discussion made above and in
accordance with law, within three months.
28. So far as question of consequential
relief is concerned, petitioner's continuous
absence from duty without sanction of leave
is admitted. We, therefore, leave it to
competent authority to take appropriate
decision in accordance with Rules; whether
period of absence of petitioner is to be
regularized against leave admissible and
whether petitioner would be entitled to salary
for such period. It would pass an appropriate
reasoned order after it takes decision on
petitioner's application seeking voluntary
retirement but not beyond three months from
the date the decision is taken on the
application for voluntary retirement.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2015
BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
Writ- A No. 40235 of 2015
Smt. Abha Dwivedi
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri B.N. Tiwari, Sri Venu Gopal
Counsel for the Respondents:
C.S.C.
U.P. Intermediate Education Act, 1921Regulation
21
Chapter-III-benefit
of
academic
session-G.
O.-
15.06.2015
clarifying
the
situation-those
teachers
working
beyond
their
age
of
superannuation-on 31.03.2015-not entitled
for further benefits of extension-argument
regarding discrimination with those retiring
prior 31st March 2015 and retiring after
April 15-misconceived-petition dismissed.
Held: Para-13
In view of the above discussion, the
petitioner cannot be allowed to continue till
31st March, 2016 for the reason that she
had attained the age of superannuation
during the Academic Session 2014-15 and
had continued till 30th June, 2015 i.e. end
of that academic session 2014-15.
Case Law discussed:
Special Appeal Defective 492 of 2015
(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)
1. Heard Sri Venu Gopal, learned
counsel for the petitioner and learned
Standing Counsel.
2. The petitioner seeks mandamus to
continue till 30th March, 2016 on the basis
of the Government order dated 15.10.2014
which provides for the change of Academic
Session to 1st April to 31st March instead
and in place of 1st July to 30th June.
3. By means of the subsequent
Government order dated 15th June, 2015,
it has been clarified that the change of
academic session to 1st April to 31st
March would not have any effect on
providing session benefit to those teachers
who had retired and were continuing till
30th June 2015 on Session benefit. The
teachers who had continued beyond their
age of superannuation would not be
allowed to continue till the end of
Academic Session 2015-16 i.e. till 31st
March, 2016 in view of the change of
Academic Session vide Government order
dated 9th September, 2014.