# STATE OF UTTAR PRADESH & ORS v. ACHAL SINGH

- **Citation:** [2018] 9 S.C.R. 912
- **Court:** Supreme Court of India
- **Decided:** 2018-08-21
- **Case number:** Civil Appeal No. 8421 of 2018
- **Bench:** Arun Mishra, S. Abdul Nazeer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-uttar-pradesh-ors-v-achal-singh-33089
- **Pages:** 37

## Headnote

Public Health Administration: Respondents-doctors members
of Provincial Medical service filed applications for voluntary
retirement - Since no order was communicated to them, respondents
filed writ petition seeking voluntary retirement - High Court allowed
the writ petitions - Aggrieved State Government filed instant appeal -
Held: Under r.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 said rule, the
appointing authority has to accept the notice for voluntary retirement
or it can be refused on permissible grounds - r.56(c) does not fall
in the category where there is an absolute right on the employee to
seek voluntary retirement - The respondents claimed right to retire
under Part III of the Constitution - Such right cannot be supreme
than right to life - It has to be interpreted along with the rights of
the State Government in Part IV of the Constitution - Where right of
public is involved in obtaining treatment, the State Government can
decline the prayer for voluntary retirement considering the public
interest - 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 - It is obligatory upon
the State Government to make an endeavour under Art.47 to look
after the provisions for health and nutrition - Therefore, the decision
of State Government in declining the prayer for voluntary retirement
considering the public interest did not suffer from any vice of
arbitrariness - When services are required, denial of voluntary
retirement is permissible under the Rules applicable in the State of
Uttar Pradesh - Health laws - Service Law - Voluntary retirement -
Uttar Pradesh Fundamental Rules - r.56(c) - Constitution of India
- Art.47.
912
[2018] 9 S.C.R. 912
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Uttar Pradesh Fundamental Rules: r.56 and its Explanation -
Explanation attached to r.56 makes it clear that the decision of the
appointing authority under clause (c) of r.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 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 - Service
Law - Voluntary retirement.
Constitution of India: Principle of liberty and its curtailment -
Respondents-doctors members of Provincial Medical service seeking
voluntary retirement - The submission made upon principle of liberty
and its curtailment, the law must be just, fair and reasonable cannot
be accepted as the Fundamental Rules are statutory rules and have
been made by the Governor under s.241(2)(b) of the Government
of India Act, 1935 and provisions of Fundamental Rules cannot be
said to be unfair, unreasonable and oppressive - The concept of
liberty not to serve cannot be attracted when the public interest
demands as retirement can be subject to certain riders - The right
under Art. 19(1)(g) is also 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 - 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 - Service
Law - Voluntary retirement - Uttar Pradesh Fundamental Ru

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SUPREME COURT REPORTS
[2018] 9 S.C.R.
STATE OF UTTAR PRADESH & ORS.
v.
ACHAL SINGH
(Civil Appeal No. 8421 of 2018)
AUGUST 21, 2018
[ARUN MISHRA AND S. ABDUL NAZEER, JJ.]
Public Health Administration: Respondents-doctors members
of Provincial Medical service filed applications for voluntary
retirement - Since no order was communicated to them, respondents
filed writ petition seeking voluntary retirement - High Court allowed
the writ petitions - Aggrieved State Government filed instant appeal -
Held: Under r.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 said rule, the
appointing authority has to accept the notice for voluntary retirement
or it can be refused on permissible grounds - r.56(c) does not fall
in the category where there is an absolute right on the employee to
seek voluntary retirement - The respondents claimed right to retire
under Part III of the Constitution - Such right cannot be supreme
than right to life - It has to be interpreted along with the rights of
the State Government in Part IV of the Constitution - Where right of
public is involved in obtaining treatment, the State Government can
decline the prayer for voluntary retirement considering the public
interest - 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 - It is obligatory upon
the State Government to make an endeavour under Art.47 to look
after the provisions for health and nutrition - Therefore, the decision
of State Government in declining the prayer for voluntary retirement
considering the public interest did not suffer from any vice of
arbitrariness - When services are required, denial of voluntary
retirement is permissible under the Rules applicable in the State of
Uttar Pradesh - Health laws - Service Law - Voluntary retirement -
Uttar Pradesh Fundamental Rules - r.56(c) - Constitution of India
- Art.47.
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[2018] 9 S.C.R. 912
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Uttar Pradesh Fundamental Rules: r.56 and its Explanation -
Explanation attached to r.56 makes it clear that the decision of the
appointing authority under clause (c) of r.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 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 - Service
Law - Voluntary retirement.
Constitution of India: Principle of liberty and its curtailment -
Respondents-doctors members of Provincial Medical service seeking
voluntary retirement - The submission made upon principle of liberty
and its curtailment, the law must be just, fair and reasonable cannot
be accepted as the Fundamental Rules are statutory rules and have
been made by the Governor under s.241(2)(b) of the Government
of India Act, 1935 and provisions of Fundamental Rules cannot be
said to be unfair, unreasonable and oppressive - The concept of
liberty not to serve cannot be attracted when the public interest
demands as retirement can be subject to certain riders - The right
under Art. 19(1)(g) is also 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 - 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 - Service
Law - Voluntary retirement - Uttar Pradesh Fundamental Rules -
r.56(c).
Constitution of India: Art.14 - Equality - Plea of
discrimination - Respondents-doctors members of Provincial
Medical service denied voluntary retirement - Plea 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 - Held: Not correct - Doctors of
STATE OF UTTAR PRADESH & ORS. v. ACHAL SINGH
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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 - Public Health Administration.
Allowing the appeals, the Court
HELD: 1. 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.
[Para 10] [925-F]
State of Bombay v. United Motors, AIR 1953 SC 252 :
1953 SCR 1069; Bengal Immunity v. State of Bihar AIR
1955 SC 661 : 1955 SCR 603; State of Haryana v.
S.K. Singhal (1999) 4 SCC 293 : [1999] 2 SCR 714 -
relied on.
Dinesh Chandra Sangma v. State of Assam (1977) 4
SCC 441 : [1978] 1 SCR 607 - distinguished
B.J. Shelat v. State of Gujarat (1978) 2 SCC 202 : [1978]
3 SCR 553 - held inapplicable
Himachal Pradesh Horticultural Produce Marketing &
Processing Corporation Ltd. v. Suman Behari Sharma
(1996) 4 SCC 584 : [1996] 3 SCR 1069; Padubidri
Damodar Shenoy v. Indian Airlines Ltd. & Anr. (2009)
10 SCC 514: [2009] 14 SCR 356; C.V. Francis v. Union
of India & Ors. (2013) 14 SCC 486: [2013] 8 SCR 53;
Tek Chand v. Dile Ram (2001) 3 SCC 290 : [2001] 1
SCR 527 - referred to.
2.1 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
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the rule in question, the appointing authority has to accept the
notice for voluntary retirement or it can be refused on permissible
grounds. Rule 56(c) does not fall in the category where there is
an absolute right on the employee to seek 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. [Paras
25, 26, 28] [942-H; 943-A-B, E]
Mahant Dhanmir v. Madan Mohan, (1987) Supp SCC
528 : 1988 SCR 679 - relied on
Moti Ram Deka v. G.M., North East Frontier Railway
(1964) 5 SCR 683 - held inapplicable
2.2 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 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. [Para 31] [944-F-G]
3. 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. [Para 33] [945-A]
Jagadish Saran v. Union of India, (1980) 2 SCC 768:
[1980] 2 SCR 831 - relied on
4.1 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
STATE OF UTTAR PRADESH & ORS. v. ACHAL SINGH
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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.
[Para 34] [945-D-G]
4.2 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. [Para 35] [946-C-E]
5. 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 High Court
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ought to have rejected and not to allow the prayer of voluntary
retirement made by the doctors. [Para 36] [946-G-H; 947-A-B]
6. 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. It is a duty of every citizen under Article 51A(g)
to have compassion for living creatures. 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, 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. [Para 38] [947D-F]
7. Plea 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
cannot be accepted. 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. Thus, 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 Policy once they
found statutory expression in the rules cannot be made mockery.
[Paras 39, 42] [947-G-H; 948-A, F-G]
Dr. Anil Dewan v. State of Punjab, ILR 1 Punjab & Haryana
46; State of Punjab v. Dr. Harbir Singh Dhillon, 2010 SCC
Online P&H 6159; Dr. Kalpana Singh v. State of Rajasthan,
(2014) SCC Online Raj 6253 - referred to.
STATE OF UTTAR PRADESH & ORS. v. ACHAL SINGH
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Case Law Reference
[1978] 1 SCR 607
distinguished
Para 8
[1978] 3 SCR 553
held inappropriate
Para 16
1953 SCR 1069
relied on
Para 17
1955 SCR 603
relied on
Para 17
[1999] 2 SCR 714
relied on
Para 18
[1996] 3 SCR 1069
referred to
Para 21
[2009] 14 SCR 356
referred to
Para 22
[2013] 8 SCR 53
referred to
Para 23
[2001] 1 SCR 527
referred to
Para 24
[1988] SCR 679
relied on
Para 27
[1964] 5 SCR 683
held inapplicable
Para 29
[1980] 2 SCR 831
relied on
Para 33
ILR 1 Punjab & Haryana 46
referred to
Para 40
2010 SCC Online P&H 6159
referred to
Para 40
(2014) SCC Online Raj 6253
referred to
Para 40
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8421
of 2018
From the Judgment and Order dated 29.11.2017 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition
No. 14939 (S/B) of 2017
WITH
C.A. Nos. 8422, 8423, 8424 of 2018
P. N. Mishra, Amrendra Sharan, Rakesh Dwivedi, R. B. Singhal,
Sr. Advs., Ankur Prakash, K. Luikang Michael, Ashok Pande, R. K.
Sainy, Rajeev Kumar for Satyajeet Kumar, Gaurav Dhingra, Gaurav
Mehrotra, Talha Abdul Rahman, Kushagra Pandey, Sidharth Iyer,
Amrendra Kumar Mehta, Raghvendra Saini, Sanjay Mani Tripathi for
Ms. Anu Gupta, Hiral Lal, Surendra Kumar, Aditya B. Singhal, Amit
Kumar Upadyay for Aftab Ali Khan, Advs. with them for the appearing
parties.
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The Judgment of the Court was delivered by
ARUN MISHRA, J. 1. Leave granted.
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
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
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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.
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.
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
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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 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 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.
STATE OF UTTAR PRADESH & ORS. v. ACHAL SINGH
[ARUN MISHRA, J.]
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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 years1 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.
(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
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/SEC2-5-2017-7(237)/2014 dated 31.5.2017.
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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.
STATE OF UTTAR PRADESH & ORS. v. ACHAL SINGH
[ARUN MISHRA, J.]
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(2) In order to be satisfied whether it will be in the public interest
to require a Government servant to retire under clause (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
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shorter notice 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 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.
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
STATE OF UTTAR PRADESH & ORS. v. ACHAL SINGH
[ARUN MISHRA, J.]
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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:
"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
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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
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.
STATE OF UTTAR PRADESH & ORS. v. ACHAL SINGH
[ARUN MISHRA, J.]
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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.
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 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
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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.
16.